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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 
LOS  ANGELES 


# 


CONSTITUTIONAL  HISTORY 


OF 


SotjitlTL     C^r^ollimaL 


FROM  1725  TO  1775. 


BY 

D.   D.   WALLACE,    A.   M., 

ADJrNCT  PROFESSOR  OF  HISTORY  AND  ECOKOMICS  IN  WOFFORD  COLLEGE. 


PRESENTED  AT  VANDERBILT  UNIVERSITY  FOR  THE    DEGREE    OF    DOCTOR    OF 

PHILOSOPHY. 


ABBEVILLE,     S.    C.  : 

Hugh  Wilson,  Printer. 
1899. 


.CONSTITUTIONAL  HISTORY 

7  ""^ 


OF 


Soi^j^tt^     C^r^c3lir:i^ 


FROM  1725  TO  1775. 


BY 

D.   D.   WALLACE,    A.    M., 

;  ■ — 

ADJUNCT   PKOFESSOK  OF  HISTORY  AND  ECONOMICS  IN  WOFFORD  COLLEGE. 


PRESENTED  AT  VANDERBILT  UNIVERSITY   FOR  THE    DEGREE    OF    DOCTOR    OF 

PHILOSOPHY. 


ABBEVILLE,     S.     C.  : 

Hugh  Wilson,  Printer. 
1899. 


ERRATA. 

Page  II,  la^t  line,  last  word;  jr/r// preceding. 

Page  13,  twelfth  line;  strike  out  second  n  in  Hannover. 

Page  13,  ninth  line  from  bottom;   spell  tranquillity. 

Page  22,  ninth  line  from  bottom;  strike  out  simply;  in 
line  above,  after  that  insert  in  some  instances. 

Page  22,  ninth  line  from  bottom;  .y/r// notarial. 

Page  26,  eleventh  line  from  bottom;  jr/t7/ villians. 

Page  27,  second  line  from  bottom;  i-Zc// forbade. 

Page  35,  twelfth  line  from  bottom;  spell  Britain. 

Page  40,  third  line  from  bottom;  spell  adjourned. 

Page  49,  fourth  line;   spell  its. 

Page  66,  fourth  line  from  bottom;  read,  ten  of  its  mem- 
bers, leading  men,  etc. 

Page  92,  seventh  line  from  bottom;   read  makes. 


1563014 


1563014 


NOTE. 

The  present  publication  is  not  a  complete  work, 
nor  is  it  a  portion  of  an  uncompleted  work;  it  is  only 
the  first  part  of  "The  Constitutional  History  of  South 
Carolina  from  1725  to  1810,"  which  is  now  in  manu- 
script. This  will  explain  the  sense  of  incompleteness 
which  will  be  experienced  in  reading  these  chapters, 
which  constitute  hardly  one-third  of  the  whole.  I  have 
treated  the  whole  period  from  1725,  and  especially  from 
1765,  to  1 8 10  as  a  unit,  for  reasons  which  appear  in  the 
work;  it  is  therefore  not  properly  susceptible  of  division. 
I  hope  in  the  near  future  to  issue  the  complete  study  in 
book  form. 

The  Preface  and  Bibliography  in  the  following  pages 
belong  to  the  complete  thesis,  and  were  not  written  only 
for  the  portion  now  issued. 


PREFACE. 

My  object  has  been  to  trace  the  constitutional 
development  of  the  people  of  South  Carolina.  If  there 
is  a  wearisome  multiplication  of  details  it  is  due  to  going 
too  far  in  my  desire  to  make  the  history  perfectly  intel- 
ligible and  likewise  realistic.  This  is  made  the  more 
necessary  by  the  meagre  treatment  given  by  the  general 
histories  to  South  Carolina,  and  by  the  many  egregious 
blunders  in  matters  of  fact  in  many  of  them. 

Two  thoughts  have  been  paramount  in  my  method 
of  work:  first,  to  find  the  truth;  and  second,  to  co-ordi- 
date,  subordinate  and  group  facts  so  as  to  exhibit  their 
essential  significance,  and  allow  them  to  display  the 
manner  in  which  they  were  the  mediums  for  the  trans- 
mission of  constitutional  development.  Let  us  find 
what  actually  are  the  facts;  that  ascertained,  facts  be- 
come but  the  expression  of  the  actualization  of  the  prin- 
ciples in  operation  and  the  ever  new  starting  point  for 
further  unfolding. 

Added  to  these  two  professional  ideas  has  been  that 
of  love  for  its  own  sake  of  the  element  in  which  I  have 
worked.  Indeed,  properly  speaking  this  is  also  a  pro- 
fessional requisite  if  one's  ideal  is  not  to  be  barren, 
heartless  and  dwarfed.  As  a  native  South  Carolinian  I 
feel  an  affection  for  my  State's  history  and  a  pride  in 
what  of  it  is  noble.  I  have  not,  however,  written  from 
the  standpoint  of  the  South  Carolinian,  but  from  that 
of  the  historian.  This  work  may  possess  little  worth  at 
best;  certainly  its  value  would  have  been  small  and  its 
interest  narrow  had  I  taken  the  provincial  point  of  view. 


vi  PREFACE. 

AH  the  facts,  except  some  of  those  in  the  compar- 
ative history  outside  South  CaroHna  and  except  a  few 
within  the  State,  are  from  original  sources,  mainly 
manuscripts  and  contemporary  newspapers.  I  have 
endeavored  to  get  beyond  the  mere  legislative  and 
judicial  records,  by  the   use  of  letters  and  newspapers.^ 

I  am  under  special  obligations  to  the  Charleston 
Library  Society,  and  particularly  to  Dr.  H.  Baer,  by 
whose  courtesy  I  enjoyed  the  privileges  of  this  institu- 
tion. I  take  pleasure  in  thanking  Mr.  W.  G.  Hinson, 
of  James  Island,  Charleston  county,  for  extending  me 
the  unrestricted  use  of  his  library.  Dr.  Wilson,  of 
Charleston,  has  also  been  so  kind  as  to  allow  the  use  of 
the  library  of  the  South  Carolina  Historical  Society,  of 
which  he  is  President. 

Hon.  D.  H.  Tompkins,  former  Secretary  of  State, 
and  Hon.  M.  R.  Cooper,  the  incumbent,  as  well  as  all 
the  other  occupants  of  the  department  offices,  have 
been  so  uniformly  helpful  in  furnishing  every  facility 
for  the  prosecution  of  the  most  important  part  of  my 
work  that  I  express  with  pleasure  my  warm  appreciation. 

I  append,  without  discussing,  the  following  bibli- 
ography. 

D.   D.   WALLACE. 

Vanderbilt  University,  April  25,  1899. 


1  The  title  "Public  Records,"  used  below,  is  very  inadequate.  These  Records 
are  correspondence,  etc.,  official  and  otherwise  (nearly  always  official),  on 
nearly  every  conceivable  feature  of  the  history  of  South  Carolina  from  its  set- 
tlement to  the  Revolution.  They  were  recently  copied  from  the  Public 
Records  Office  in  London. 


BIBLIOGRAPHY. 

I.      Primary  Authorities. 

(a)   Official  contemporary,  not  including  any  of  (d). 
American  Archives,  7  Vols. 
American  Eloquence,  2  Vols. 
Collections    of  the    South    Carolina  Historical  Society. 

See  Journal  of  the  Council  of  Safety. 
Debates  in  the  Convention  of   1788  (S.  C.)  on  the  Fed- 
eral Constitution.^ 
Debates  on  the  Federal  Constitution;  Elliot.^ 
Elliott.      See  second  "Debates." 
ournal  of  the  Commons  House  of  Assembly  of  South 

Carolina,  1719-1775;  MS. 
ournal   of  the    Council    of  Safety    of  South    Carolina; 
Vols.    n.   and  HI.   of  Collections  of    the    South 
Carolina  Historical  Society, 
ournal    of  His    Majesty's    Council  of  South    Carolina, 

1719-1774;   MS. 
ournal  of  the  House  of  Representatives  of  South  Car- 
olina,   1776-1815;  MS. 
ournal    of     the    Privy    Council    of    South     Carolina, 

1784-86;   MS. 
ournal  of  the  Senate  of  South    Carolina,    1 783-181 5; 

MS. 
Poore;  Constitutions  and  Charters,^  2  Vols. 
Public  Records  of  South  Carolina;   MS.;   39  Vols. 
Statutes  at  Large  of  South  Carolina;    10  Vols. 

(b)  Contemporary  unofficial,  not   including  any  of 
(c)  and  (d). 

1  It  is  not  meant  that  the  publishing  in  the  form  cited  was  official. 


Vlll 


BIBLIOGRAPHY. 


Adams,  John;  Works,   Vol.  IV.  of  the   lo  Vol.  edition. 

Address  to  the  People  of  South  Carolina,  by  the  Gen- 
eral Committee  of  the  Representative  Reform 
Association;  by  Appius.  Columbia,  S.  C. ,  June, 
1794. 

Alston,  Hon.  Joseph,  of  Winyaw;  Speech  in  the  House 
of  Representatives  of  South  Carolina,  December, 
1807,  on  amending  the  State  Constitution. 

Americanus.      See  Constitutionalist, 

Appius.      See  Address,  etc. 

Constitutionalist,  The;  by  Americanus  (Timothy  Ford). 
Charleston,  S.  C,  1794. 

Ford,  Timothy.      See  Constitutionalist. 

Gibbes,  R.  W. ;  Documentary  History  of  the  American 
Revolution  in  South  Carolina,  178 1-2.  See  also 
"Tar  and  Feather  Papers." 

"Tar  and  Feather  Papers"  (so  called);  loose  MSS.  of  the 
late  Prof.  R.  W.  Gibbes.  ^ 
(c)  Contemporary  Journalistic. 

City  Gazette,  or  the  Daily  Advertiser,  The;  Charleston; 
by  Markland  &  Mclver. 

Gazette  of  the  State  of  South  Carolina;  Charleston, 
weekly;  by  Peter  Timothy. 

South  Carolina  and  American  General  Gazette;  Charles- 
ton, weekly;  by  R.  Wells  &  Son;  afterwards  by 
Jno.  Wells,  Jr. 

South  Carolina  Gazette;  Charleston,  weekly;  by  Peter 
Timothy,  Printer  to  the  Honorable  the  Com- 
mons House  of  Assembly. 

South  Carolina  Gazette  and  Country  Journal;  Charles- 
ton, weekly;  by  Charles  Crouch. 

1  Some   of  these  papers  would  come  under  a  different  class  in  the  bibli- 
ography ;  those  I  have  used  belong  here. 


BIBLIOGRAPHY.  ix 

Universal  Gazette,  The;   Philadelphia. 
(d)   Court  Reports. 

Early  Reports  in  all  the  original  thirteen  States;  but 
more  particularly, 

Bay,  Judge  Elihu;  Reports  of  Law  Cases  in  South  Car- 
olina,  1 783-1 804.      2  Vols. 

Mill;  Constitutional  Reports  of  cases  in  1 817.     2  Vols. 

Nott  &  McCord;   Law  Cases  1817-1819.      2  Vols. 

Thayer,   James    B. ;  Cases    on  Constitutional    Law.      2 
Vols. 
II.      Secondary  Authorities. 

American  Academy  of  Political  and  Social  Science. 
See  Morey  and  W^ebster. 

Appleton's  Cyclopedia  of  American  Biography. 

Bancroft,  George;  History  of  the  Adoption  of  the  Fed- 
eral Constitution.      2  Vols.^ 

Davis,  Horace;  American  Constitutions;  the  Relations 
of  the  Departments  as  Tested  by  a  Century.  J. 
H.  U.  Studies  in  Historical  and  Political  Science, 
Third  Series,  IX. -X, 

Drayton,  John;  Memoirs  of  the  American  Revolution, 
Principally  in  South  Carolina.      2  Vols. 

Hildreth,  Richard;  History  of  the  United  States;  6 
Vols;  Vol.  III. 

Jameson,  Judge  J.   A. ;  The  Constitutional  Convention. 

Mill;  Statistics  of  South  Carolina. 

Morey,  William  C.  ;  The  Genesis  of  a  Written  Consti- 
tution. Annals  of  the  American  Academy  of 
Political    and    Social    Science,    April,    1891     (I., 

529). 
O'Neal,   Judge  John  Belton;   Bench  and   Bar  of  South 
Carolina.      2  Vols. 

1  Follows  the  records  so  closely  as  to  resemble  a  primary  authority. 


X  BIBLIOGRAPHY. 

Schouler,  James;  Constutional  Studies. 

Taswell-Langmead  ;  Constitutional  History  of  England. 

Thayer,  James  B. ;  Origin  and  Scope  of  the  American 
Doctrine  of  Constitutional  Law.  See  also  under 
I.,  (d.) 

Webster,  W.    C. ;   State  Constitutions  of  the  American 
Revolution.      Annals  of    the  American  Academy 
of  Political  and  Social  Science,  No.  200. 
III.      Collateral  Works. 

Adams,  Brooks;  The  Embryo  of  a  Commonwealth. 
Atlantic  Monthly,  November,  1884  (Vol.  LIV., 
610). 

American  Historical  Review.      See  Trent. 

Atlantic  Monthly.      See  Adams,  Brooks. 

Jameson,  J.  Franklin;  Introduction  to  the  Study  of  the 
Constitutional  and  Political  History  of  the  Indi- 
vidual States.  J.  H.  U.  Studies  in  Historical 
and  Political  Science,  Fourth  Series,  V. 

Johns  Hopkins  University  Studies  in  Historical  and  Polit- 
ical Science;  see  under  this  division,  Jameson,  J. 
F. ;  Moran;  Ramage;  Riley;  Whitney;  under 
II.,  Davis. 

Johnson,  Alexander;  Connecticut,  in  American  Com- 
monwealth Series. 

Locke,  John;  Two  Treatises  on  Government.  See  also 
in  Poore,  under  I.,  (a). 

Moran,  F.  F. ;  Rise  of  the  Bicameral  System  in  Amer- 
ica.     J.  H.  U.  Studies,  Thirteenth  Series,  V. 

Pinckney,  Rev.  C.  C. ;   Life  of  Gen.  Thomas  Pinckney. 

Ramage,  B.  J. ;  Free  Schools  and  Local  Government  in 
South  Carolina.  J.  H.  U.  Studies,  First  Series, 
XII. 

Ramsay,  David;  History  of  South  Carolina.      2  Vols. 


BIBLIOGRAPHY.  xi 

Ramsay,  David;  History  of  the  Revolution  of  South 
Carolina  from  a  British  Province  to  an  Independ- 
ent State.      2  Vols. 

Riley,  F.  L.  ;  Colonial  Origin  of  New  England  Senates. 
J.  H.  U.  Studies,  Fourteenth  Series,  III. 

Stevens,  C.  E. ;  Sources  of  the  Constitution  of  the 
United  States,  Considered  in  Relation  to  Colonial 
and  English  History. 

Trent,  W.  P.;  The  Case  of  Josiah  Philips  (in  Va.). 
American  Historical'  Review,  I.,  444. 

Whitney,  E.  L. ;  Government  of  the  Colony  of  South 
Carolina.  J.  H.  U.  Studies,  Thirteenth  Series, 
I. -II. 


TABLE  OF  CONTENTS. 


Chapter  Page 

I.     Introductory 1 

II.     The  Royal  Governor.  4 

III.  The  Commons  House  of  Assembly 9 

IV.  His  Majesty's  Council 16 

V.     The  Courts  Before  1769 21 

VI.     Regulators,  and  the  Circuit  Act  of  1769 25 

VII.     The  Stamp  Act '. 32 

VIII.     Relations  of  Commons  and  Council  1725  to  1765 47 

IX.     Appropriation  of  Money  on  Sole  Authority  of  the 

Commons 59 

X.     Attempt  of  the  Commons  to  Abolish  the  Legisla- 
tive Character  of  the  Council 78 

XI.     Conclusion 90 


CONSTITUTIONAL  HISTORY 


OF 


FROM  1725  TO  1775. 


CHAPTER  I. 

Introductory. 

It  has  been  remarked  by  Prof.  Rivers,  in  Windsor's 
Narrative  and  Critical  History  of  America,  that  the 
most  noteworthy  feature  in  the  colonial  history  of 
South  Carolina  is  the  growing  power  of  the  Commons 
House  of  Assembly.  No  statement  could  be  made 
regarding  the  history  of  the  province  which  would  be  at 
the  same  time  so  concise  and  so  comprehensive.  This 
increasing  determination  of  the  people  to  be  self-gov- 
erned was  emphatically  asserted  in  the  revolution  of 
1 7 19.  That  year  is  also  a  dividing  point  in  the  de- 
velopment. Before  that  date  it  was  the  struggle 
against  the  Lords  Proprietors;  afterwards,  the  contest 
against  the  arbitrary  power  of  the  King  as  expressed 
through  the  Royal  Governor,  and  particularly  the  Coun- 
cil.     To  trace  this  struggle  across  the  period  from  1725 


2       CONSTITUTIONAL  HISTORY  OF  S.    C. 

to  1775  is  the  theme  of  this  paper.  This  period  com- 
prised the  years  of  preparation  for  independent  state- 
hood. To  understand  the  events  we  shall  see  enacted, 
some  general  view  of  the  frame  of  government  which 
was  in  existence  will  be  of  help. 

No  colony  presented  more  glaring  contrasts  in 
social  and  governmental  life  than  did  South  Carolina. 
Yet  these  contrasts  were  almost  wholly  factitious, 
destined  by  geography,  products  and  social  institu- 
tions to  be  brought  in  a  few  decades  to  an  essential 
homogeneity.  No  society  was  more  elegant  than 
that  of  Charleston,  the  provincial  capital;  few  more 
free,  both  from  culture  and  restraint,  than  that  of 
the  distant  back  country,  where  two  converging  streams 
of  Scotch-Irish  and  Germans,  by  land  down  the  moun- 
tain ridges  from  Pennsylvania  and  the  intervening  colo- 
nies, and  by  sea  through  Charleston,  were  preparing  to 
shift  the  governmental  centre  of  gravity  far  from  the 
City  by  the  Sea.  The  low  country  "planter,"  ordained 
by  God,  as  he  said,  not  to  labor  in  the  swamps,  might 
own  thirty  thousand  acres  and  a  thousand  slaves;  the 
up  country  "farmer"  was  better  off  without  the  "pecu- 
liar institution,"  and  the  grant  book  recorded  his  land 
in  hundreds,  not  thousands,  of  acres. 

The  names  that  fill  the  pre-revolutionary  history  of 
South  Carolina  are  all  of  low  country  families.  Wealth 
as  well  as  culture  kept  near  the  sea  shore.  As  late  as 
1790,  the  city  of  Charleston  alone  paid  27  per  cent. 
more  taxes  than  the  whole  up  country  combined;  while 
the  three  "districts"  of  Georgetown,  Charleston  and 
Beaufort,  the  area  always  meant  at  this  time  by  the 
"low  country,"  paid  some  three  and  one-half  times  the 
taxes  of  all  the  rest  of  South  Carolina.      The  poorer  up 


INTRODUCTORY.  3 

country  section  had  then  four  times  the  population  of 
the  other.  Before  the  Revolution,  the  disproportion  of 
wealth  was  even  greater. 

In  Charleston,  too,  was  the  seat  of  government. 
There  the  Governor  lived,  the  Assembly  met,  the  courts 
convened.  Until  1772  no  court,  except  the  feeble  jus- 
tices of  the  peace,  and  irresponsible  similar  courts  for 
the  trial  of  slaves,  ever  met  outside  the  city.  The  up 
country  likewise  had  not  one  representative  in  the  legis- 
lature. Warping  the  meaning,  we  may  say  that  if  the 
maxim  be  true,  that  the  country  that  is  governed  least 
is  governed  best,  then  the  government  of  the  up  coun- 
try left  little  to  be  desired. 

The  frame  of  government  comprised  the  Governor, 
the  Commons  House  of  Assembly,  the  Council,  and  the 
Courts.  These  four  were  not  organized  into  the  three 
distinct  branches  of  executive,  legislative  and  judiciary; 
for  the  Governor,  besides  having  a  veto  power,  was 
something  of  a  judge,  and  the  Council  was  a  mixture  of 
all  three.  Here,  let  us  note,  lay  one  great  cause  of  the 
gripings  of  the  colony's  constitution. 


CHAPTER  II. 

The  Royal  Governor. 

The  Governor  or  Lieutenant-Governor  was  the 
chief  executive  of  the  colony  and  did  the  things  usually 
done  by  chief  executives.  The  difference  between  the 
Governor  and  the  Lieutenant-Governor  was,  first,  that 
the  Governor  was  always  an  Englishman,  and  the  Lieu- 
tenant-Governor always  a  South  Carolinian.  The  one 
was  never  denied  the  more  distinguished  title  and  the 
other  was  never  granted  it.  Second,  the  form  of  ad- 
dressing the  Governor  was  always  "His  Excellency;"  of 
the  Lieutenant-Governor,  "His  Honor. "  Third,  when 
both  were  in  the  province,  the  Governor  took  precedence 
and  administered  the  government.^ 

When  the  Governor  was  in  the  colony,  the  Lieu- 
tenant had  no  duties,  unless  by  virtue  of  some  other 
office.  Both  were  commissioned  and  served  without 
any    reference    to    each    other's    terms    of  continuance. 

1  Some  controversy  has  been  raised  on  the  appointment  of  Lieutenant- 
Governors  in  .South  Carolina.  Prof.  E.  L.  Whitney,  in  his  "Government  of 
the  Colony  of  .Soutli  Carolina,"  page  45,  says  that  Thomas  Brougliton  was  the 
only  Lieutenants-Governor  ever  appointed  in  tliat  colony.  This  is  a  serious 
mistake.  I  am  sure  that  Dr.  Whitney  has  not  consulted  tlie  proper  author- 
ities. He  has  evidently  written  liis  study  without  any  access  to  the  Journals 
and  records  in  Columbia,  still  in  manuscript,  the  only  source  in  this  countiy 
from  which  the  information  can  be  obtained.  I  do  not  discover  in  his  whole 
work  a  single  reference  to  these  authorities.  I  have  examined  thousands  of 
pages  of  these  records,  including  the  deUiils  of  the  appointment  of  every  chief 
e.xecutive  under  the  royal  government,  and  have  found  the  facts  as  stated 
in  the  text  above.  For  about  twenty-flve  of  the  flfty-six  years  of  royal 
government  in  South  Carolina  the  province  was  administered  by  Lieutenant- 
Governors,  of  whom  there  were  three.  Gen.  l<:dward  McCrady,  in  his  "Kouth 
Carolina  Under  the  Proprietary  Government,"  p.  34,  has  already  fully  correct- 
ed this  error  of  Prof.  Whitney. 


THE  ROYAL  GOVERNOR.  5 

Not  at  all  times  by  any  means  did  both  exist.  Their 
terms  were  during  royal  pleasure.  The  annual  pay  of 
either  was  ^^3,500  currency,  equal  to  ;^500  sterling,  and 
a  house  worth  ^700  rental.'  When  part  of  the  fiscal 
year  was  filled  by  one  executive  and  part  by  a  successor, 
each  was  paid  exactly  in  proportion  to  the  time  of  his 
service. 

By  the  King's  instructions,  in  the  absence  of  both 
Governor  and  Lieutenant-Governor  the  oldest  Coun- 
cillor was  to  succeed  temporarily,  but  was  not  to  pass 
any  law,  unless  of  the  most  pressing  necessity,  without 
the  express  royal  permission.  On  two  occasions  under 
the  royal  government  this  exigency  arose:  in  1726,  and 
again  in  1737.  In  the  first  instance  Arthur  Middleton 
was  at  the  head  of  the  government  for  several  years 
and  was  addressed  as  "Mr.  President;"  and  in  the 
second,  the  elder  William  Bull  held  on  this  tenure  for 
more  than  two  years  and  was  called  Lieutenant- 
Governor."^ 

The  Commons  House  of  Assembly,  who  controlled 
the  purse  strings,  always  refused  to  admit  that  this  or 
any  other  royal  official's  pay  was  a  "salary."  It  was  a 
"gift,"  or  "allowance,"  they  said,  of  the  good  people 
of  South  Carolina,  which  they  might  diminish  or  even 
withhold  altogether  whenever  they  saw  fit.  With  this 
weapon  they  occasionally  smote  some  Governor  or 
judge  whom  they  thought  to  have  trespassed  upon  their 
rights. 

1  Currency  was  oue-seveuth  the  value  of  sterling;  pioehinmtion  money, 
five-sevenths  the  value  of  sterling.  The  value  of  proclamation  money  was 
fixed  by  royal  proclamation,  of  Queen  Anne,  at  a  certain  ratio.  Of  course 
that  had  no  effect.  I  give  the  figures  at  which  the  moneys  actually  passed. 
(Statutes  at  Large  of  8.  C,  I.,  428;  Com.  Jour.  .S.  U.,  MS.,  XXXIX.,  pt.  II.,  132; 
Pub.  Rec.  S.  C,  MS.,  XXXI.,  2G6.) 

2  Pub.  Rec.  S.  C,  MS.,  VIII.,  101 ;  XXIX.,  132. 


6       CONSTITUTIONAL  HISTORY  OF  S.   C. 

The  King  used  every  effort  and  strategy  to  induce 
the  Commons  to  attach  fixed  salaries  to  the  positions  of 
all  his  appointees  who  drew  their  pay  from  the  colonial 
treasury.  This  the  Commons  steadily  refused  to  do. 
The  only  instance  in  which  the  King  carried  his  point 
was  in  the  Circuit  Court  Act  of  1769,  which  was  such  a 
pressing  necessity  that  he  could  dictate  terms  to  the  leg- 
islature. The  salaries  of  certain  officials  to  be  ap- 
pointed under  that  law  were  accordingly  by  it  fixed  and 
were  attached  to  the  office. 

The  Governor  had  power  of  removing  for  cause 
councillors,  judges,  justices  of  the  peace  and  other  civil 
royal  appointees,  subject  always  to  the  final  decision  of 
the  King.  The  Assembly  and  the  Council  frequently 
petitioned  for  removal,  but  the  Governor  was  in  no  wise 
bound  to  follow  their  wishes.  These  addresses  general- 
ly, if  not  always,  came  from  these  bodies  separately,  as 
such  requests  were  usually  onl}'  side  strokes  in  the  bat- 
tles between  them,  each  desiring  the  removal  of  its  own 
enemies  and  of  its  enemies  friends.^ 

The  pardoning  power  also  was  exercised  by  the 
Governor,  though  in  a  sort  of  suspensive  manner,  sub- 
ject to  the  King's  allowance  or  disallowance.  In  this 
way  a  pardon  from  the  Governor  was  strictly  speaking 
a  reprieve,  likely  to  be  confirmed  by  the  ultimate 
authority  because  of  the  confidence  entertained  in  him 
by  the  ministry.- 

The  Governor  always  met  with  the  Council  and 
presided,  except  when  they  were  transacting  purely  leg- 
islative business  or  when  he  wished  them  to  be  abso- 
lutely uninfluenced  by  his  presence.      Usually  on  all  his 

1  Com.  Jour.  8.  C,  MS.,  XXXVII.,  pt.  II.,  104,  351-9,  391,  402. 

•i  Council  Jour.  S.  C,  MS.,  XXXIV.,  152,  106;  Pub.  Rec.  S.  C,  MS.,  XXXI.,  425. 


THE  ROYAL  GOVERNOR.  7 

acts  he  consulted  them,  though  he  was  not  bound  to 
take  their  advice.  Yet  he  was  nearly  always  governed 
by  their  counsel,  so  that  practically  there  was  a  plural 
executive  of  which  the  Governor  was  chief;  he  was  the 
executive  officer  of  the  executive. 

The  most  important  fact  in  connection  with  the 
Governor  is  that  he  was  the  channel  through  which  the 
King's  influence  was  exercised  in  the  government  of 
South  Carolina.  With  his  commission,  he  was  given  a 
long  set  of  minute  "instructions,"  followed  from  time 
to  time  by  such  "additional  instructions"  as  were 
needed.  These  instructions  were  regarded  by  the  King 
as  the  constitution  of  the  province,  not  to  be  violated 
by  the  legislature,  the  Governor,  or  any  other  officer. 
Unusual  proceedings  of  the  legislature  and  constitu- 
tional questions  were  tested  by  them,  just  as  our 
supreme  court  now  tests  such  things  by  our  written 
Constitution.  The  details  of  this  and  its  constitutional 
significance  will  be  treated  at  the  proper  place.  ^ 

The  Governor  was  in  constant,  minute  communi- 
cation with  the  Secretary  of  State  for  the  Colonies  or 
the  Board  of  Trade,  from  whom  he  received  directions 
on  permitting  the  building  of  a  road  and  on  everything 
else  of  a  legislative  character  concerning  the  life  of  the 
people  of  the  far  away  colony.  What  the  King  wanted 
done  or  not  done  was  generally,  not  always,  carried  out 
as  well  as  if  the  palace  had  been  situated  on  Broad 
Street  or  the  Battery.  "-^ 

The  right  to  veto  absolutely  all  bills  passed  by  the 
Assembly  belonged  to    the  Governor.      Even   more,  all 

1  The  Uiorough  treatment  of  this  is  in  tlie  unpublished  part  of  this  work,  as 
its  full  significance  does  not  appear  until  the  formation  of  the  early  State 
Constitutions. 

2  Pub.  Rec.  S.  C,  MS.,  XXX.,  245. 


8       CONSTITUTIONAL  HISTORY  OF  S.    C. 

laws  must  receive  his  signature  ;  his  simple  indiffer- 
ence did  allow  them  to  pass.  An  act  when  signed  by 
him  acquired  the  force  of  law,  unless  it  contained  a  sus- 
pending clause,  and  continued  to  operate  unless  annulled 
by  the  King.  I  do  not  observe  that  the  King  ever  pre- 
sumed to  annul  a  law  after  it  had  been  once  allowed 
by  him  to  go  unchallenged.  It  was  a  ruse  of  the  colo- 
nists, which  sometimes  succeeded,  to  secure  the  benefit 
of  laws  for  which  they  knew  the  royal  assent  could  not 
be  expected  by  enacting  that  they  should  go  into  oper- 
ation so  quickly  and  for  so  short  a  time  that  their  effect 
would  already  have  been  worked  before  the  King  could 
send  notice  of  his  veto.  To  prevent  this  the  Royal  Gov- 
ernor, from  the  very  first,  was  instructed  not  to  allow 
any  act  of  an  unusual  nature,  or  affecting  the  King's 
prerogative,  or  previously  vetoed  by  the  King,  to 
become  a  law  until  it  had  received  the  assent  of  the 
King  himself.  To  all  other  laws  the  Governor  might 
give  his  assent,  provided  they  were  to  operate  (except 
in  a  few  cases)  for  not  less  than  two  years.  ^ 

The  Governor  had  absolute  power  to  adjourn,  pro- 
rogue and  dissolve  the  Assembly.  They  could  not 
adjourn  themselves,  except  from  day  to  day,  but  by  his 
consent.'-  The  hybrid  character  of  the  Council  is  illus- 
trated by  the  fact  that  it  often  advised  the  Governor  in 
ordering  a  prorogation  or  dissolution,  one  House  of  the 
legislature  thus  contributing  to  the  destruction  of  the 
other. 

1  Pub.  Rec.  8.  C,  MS.,  XXVI.,  276. 

2  Com.  Jour.  S.  C,  MS.,  XXXVII..  pt.  I.,  99 ;  ib.,  pt.  II.,  206,  523,  700. 


CHAPTER  III. 

The  Commons  House  of  Assembly. 

The  constitutional  history  of  colonial  South  Caro- 
lina was  made  most  largely  by  the  Commons  House  of 
Assembly.  The  history  of  this  body  is  the  histor}^  of 
political  liberty  in  the  province.  Therefore  bear  with 
this  brief  description,  after  which  the  Assembly  will  act 
out  its  own  story  before  our  eyes. 

The  Commons  House  of  Assembly,  the  General 
Assembly,  the  Assembly,  or,  under  protest  in  the  later 
years,  the  Lower  House  of  Assembly,  was  during  the 
third  quarter  of  the  i8th  century  composed  of  forty- 
nine  members.  They  were  elected  for  a  term  of  three 
years,  but  usually  met  the  fate  of  an  earlier  dissolution.' 
The  law  required  that  they  should  be  convened  at  least 
once  in  six  months.  They  could  be  assembled,  adjourned 
(except  from  day  to  day),  prorogued,  and  dissolved  only 
by  the  Governor  or  Lieutenant-Governor.  For  a  long 
time  before  the  Revolution,  they  were  too  proud,  says 
Lieutenant-Governor  Bull,  to  receive  any  pay,  though 
at  an  earlier  day  they  got  their  per  diem.  This  was  not 
again  practiced  until  after  independence.^ 

The  system  of  representation  was  intertwined  with 
the  Episcopal  established  church.  By  the  middle  of  the 
last  century  a  changing  community  and  an  unchanging 
system  presented  many  features  of  rotten  borough  injus- 
tice.     In  1765  there  were  twenty  parishes,  electing  from 

1  Pub.  Rec.  S.  C,  MS.,  XXXII.,  27. 

2  Pub.  Rec.  S.  C,  MS.,  XIV.,  153. 


lo     CONSTITUTIONAL  HISTORY  OF  S.    C. 

one  to  three  members  each.^  In  1770  there  were  twenty- 
two.  These  parishes  covered  a  strip  of  some  fifty  miles 
in  breadth  along  the  sea  coast,  widening  in  the  centre 
at  St.  Matthew's  to  about  ninety.  The  parishes  theo- 
retically extended  to  the  western  limits  of  the  province, 
a  provision  with  scarcely  more  practical  result  than  that 
of  the  Charter  of  Charles  II.  extending  the  possessions 
of  the  Lords  Proprietors  westward  to  the  Pacific  Ocean. 

Elections  were  held  by  the  church  wardens,  or  by 
appointed  managers,  at  the  parish  church,  except  when 
good  reasons  indicated  a  better  place,  and  lasted  for  two 
days.  As  only  the  small  strip  of  country  along  the  sea 
coast  was  organized  into  parishes,  and  as  representation 
was  solely  on  that  basis,  the  back  country  was  left 
wholly  without  representation.  This  injustice  was  felt 
to  be  very  heavy.  The  back  countrymen  regarded  it  as 
their  chief  grievance,  and  the  root  of  all-  their  others. 
In  1768  numbers  refused  to  pay  taxes  because  unrepre- 
sented and  threatened  that  if  their  complaints  continued 
to  be  treated  with  slight  and  reproach,  they  would  come 
down  01  masse  and  "force  a  due  attention  to  their 
claims."^  In  about  1766  a  popular  leader  from  the  upper 
section  of  St.  Mark's,  which  theoretically  including  a 
large  part  of  the  whole  province,  brought  down  to  the 
parish  church  on  election  day  some  one  hundred  and 
fifty  of  his  partisans,  captured  the  poll  and  went  victo- 
riously to  the  legislature.^ 

For  the  injustice  of  the  representation  two  parties 
were  responsible:  the  King  of  England  and  the  low 
countrymen  of  South  Carolina.       The  former  refused  to 

1  Cora.  Jour.  S.  C,  M.S.,  XXXVII.,  1. 

2  Pub.  Rec.  S.  (".,  MS.,  XXXII.,  36. 

3  Pamphlet  of  1794  or  1807.    I  neglected  to  note  the  page  or  which  pamphlet 
it  is ;  but  I  think  it  is  the  first  mentioned. 


COMMONS  HOUSE  OF  ASSEMBLY.  ii 

allow  any  increase  in  the  number  of  the  legislature;'  and 
the  latter  refused  to  divide  their  membership  of  forty- 
nine  with  their  unrepresented  fellow  citizens.  One  of 
the  fiercest  battles  in  the  constitutional  history  of  South 
Carolina  was  that  in  which,  with  stubborn  injustice,  the 
low  country  clung  to  its  preponderant  privileges  until 
the  year  1808. 

The  idea  of  requiring  a  member  to  live  in  the  dis- 
trict he  represented  did  not  arise  until  long  after  the 
Revolution.  The  same  man  sometimes  sat  for  different 
parishes  in  successive  representative  bodies. 

From  the  very  settlement  of  the  colony,  the  prob- 
lem of  electoral  qualifications  was  one  of  a  proper  mix- 
ture of  property  and  religion.  From  1670  to  1790  these 
are  the  two  varying  ingredients  of  the  test.  The  law 
passed  in  1759  was  the  regulation  until  the  Revolution. 
This  prescribed  that  a  voter  should  be  a  "free  white 
man,  and  no  other  person,  professing  the  Protestant 
religion,  who  shall  have  attained  the  age  of  twenty-one 
years,  and  shall  have  been  a  resident  and  inhabitant  of 
this  province  for  the  space  of  one  year,  at  any  time 
before  the  date  of  the  writ  to  be  issued  for  that  election 
at  which  he  shall  offer  to  give  his  vote,  and  shall  have  a 
freehold  estate  in  a  settled  plantation,  or  not  less  than 
one  hundred  acres  of  land  unsettled,  for  which  he  shall 
have  paid  tax  the  preceeding  year,  or  shall  have  a  free- 
hold estate  in  houses,  lands  or  town  lots  or  parts  thereof 
of  the  value  of  sixty  pounds  proclamation  money,-  sit- 
uated in  Charleston  or  any  other  town  of  this  province, 
for  which  he  shall  have  paid  the  tax  for  the  preceeding 

iPub.  Rec.  S.  C,  MS.,  XXXI.,  393-7;  Com.  Jour.  S.  C,  MS.,  XXXVII.,  pt. 
II.,  553. 
2  Five-sevenths  the  value  of  sterling. 


12     CONSTITUTIONAL  HISTORY  OF  S.   C. 

year,  or  shall  have  paid  the  sum  of  ten  shillings  pro- 
clamation money  for  his  own  proper  tax  the  preced- 
ing year.  "^ 

One  might  vote  in  as  many  parishes  as  he  was  qual- 
ified in,  or  be  elected  from  any  parish.  At  a  later  date, 
when  the  election  districts  of  the  State  had  been  divided 
for  convenience  into  precincts,  we  find  a  law  forbidding 
one  to  vote  in  more  than  one  precinct,  but  no  prohibi- 
tion is  made  of  one's  voting  in  more  than  one  district. 
This  is  perfectly  logical  under  a  property  qualification, 
as  all  property  should  be  represented. 

In  the  expression  "free  white  man"  there  is  no 
superfluous  term,  as  might  perhaps  be  supposed.  Not 
all  free  men  were  white,  and  not  all  white  men  were 
free.  Besides  the  free  negroes  and  the  Indians,  both 
of  whom  were  excluded  under  this  rule,  there  was  also 
a  pitiable  class  of  whites  known  as  "servants";  these 
were  the  same  as  the  "indentured  servants"  of  Virginia, 
Maryland,  etc.  They  were  never  numerous  in  South 
Carolina,  and  in  the  latter  half  of  the  i8th  century  had 
become  very  few.  These  miserable  persons,  neither 
slaves  nor  freemen,  were  treated  in  almost  all 
respects  as  slaves,  except  that  the  term  of  their  servi- 
tude was  limited.  A  law  of  171 7  expressly  forbade  them 
to  vote.  Their  social  condition  was,  however,  much 
ameliorated  in  1744." 

A  member  of  Assembly  was  required  to  be  a  natural 
born  subject  of  Great  Britian  or  a  foreigner  naturalized 
by  act  of  Parliament,  having  in  South  Carolina  a  settled 
freehold  estate  of  500  acres  and  20  slaves,  over  and 
above  all  debts;  or,  he  should  have  in  his  own  right  over 

1  statutes  at  Large  of  S.  C,  IV.,  99. 

2  Statutes  at  Large  of  S.  C,  III.,J3. 


COMMONS  HOUSE  OF  ASSEMBLY.  13 

and  above  all  debts,  houses,  town  lots  or  other  lands  in 
South  Carolina  to  the  value  of  ^1,000  proclamation 
money.  ^ 

When  a  member  elect  appeared  at  the  door  of  the 
House,  the  question  was  put  to  him  by  the  Speaker 
whether  he  desired  to  "qualify."  "Qualifyinj^"  meant 
swearing  to  one's  qualifications  for  membership  as  pre- 
scribed by  law.  If  the  member  elect  assented,  he  made 
oath  immediately  in  the  presence  of  the  House  and  was 
then  conducted  by  a  committee  to  the  Governor,  who 
administered  the  "state  oaths,"  i.  e.  the  oaths  of  alleg- 
iance to  the  House  of  Hannover,  enmity  to  Stuart  pre- 
tenders and  their  abettors,  as  prescribed  in  the  Act  of 
Settlement,  and  abjuration  of  transubstantiation  and  the 
papacy,  in  the  manner  required  of  British  members  of 
Parliament  by  the  Test  Act.- 

Not  infrequently  members  elect  declined  in  the  first 
instance  to  qualify.  The  Governor  was  then  requested 
to  issue  a  writ  for  the  election  of  a  substitute.'^  This 
apparent  indifference  to  governmental  position  is  ex- 
plained by  the  absence,  in  ordinary  times  of  political 
tranquility,  of  the  incentive  of  party  ardor.  The  aristo- 
cratic South  Carolinian  was  too  proud  to  rush  for  petty 
political  distinction.  This  spirit,  born  of  both  pride  and 
lack  of  a  keen  sense  of  civic  duty,  endured  to  a  consid- 
erable extent  as  late  as  the  Civil  War.  Service  in  a 
number  of  offices  was  made  compulsory  in  the  early 
Constitutions.  Late  in  the  present  century  urgent  solic- 
itations were  often  necessary  to  induce  members  of  the 
class  that  ruled  the  State  to  accept  public  office. 

1  statutes  at  Large  of  S.  C,  IV.,  99. 

2  Com.  Jour.  S.  C,  MS.,  XXXVII.,  pt.  II.,  14  ;  Taswell-Langmead,  656,  691. 

3  Com.  Jour.  S.  C,  MS.,  XXXVIII.,  15. 


14     CONSTITUTIONAL  HISTORY  OF  S.   C. 

By  an  extralegal  agreement,  the  representation  of 
the  city  of  Charleston,  comprising  the  parishes  of  St. 
Philip  and  St.  Michael,  was  drawn  equally  from  the  mer- 
chants and  the  mechanics.^ 

The  privileges  claimed  by  the  Commons  House  of 
Assembly  were,  in  brief,  those  of  the  British  House  of 
Commons.  How  far  they  succeeded  in  realizing  the  full 
extent  of  their  assertions  will  best  appear  in  the  history 
we  are  to  trace.  Some  of  the  most  important  of  these 
privileges  were  firmly  denied  by  the  K^ing;  it  is  there- 
fore that  we  shall  witness  some  terrific  parliamentary 
explosions.  Sad  was  it  for  lesser  individuals  who  with- 
stood their  claims;  for  the  common  jail  in  Charles  Town 
was  the  sure  goal  of  him  who,  unprotected  by  eminent 
position,  dared  to  put  contempt  upon  the  privileges  of 
the  Commons  House  of  Assembly. 

The  minute  character  of  local  affairs  to  which  legisla- 
tion descended  was  largely  due  to  the  complete  absence 
of  municipal,  township  and  county  self-government. 
Highway  commissioners,  church  wardens  and  vestrymen 
were  about  the  only  local  officers  elected  by  the  people. 
The  Assembly  widened  a  street  in  Charleston,  closed  a 
path  through  Dr.  Alexander  Garden's  plantation,  and  re- 
imbursed the  wardens  of  St.  John's,  Berkeley,  for  repair- 
ing Rev.  Hockley's  parsonage. - 


1  S.  Carolina  Gazette,  Nov.  21,  1774.  It  is  iiiteresUng  to  note  that  at  this  day 
James  Island,  now  a  part  of  Charleston  County,  by  unwritten  custom  is  allow- 
ed one  member  on  the  Charleston  delegation.  The  James  Island  people 
agree  on  their  man,  and  no  matter  liow  politics  in  the  city  go,  everybody 
makes  the  Island  man  (or  "countryman")  one  of  his  ticket.  (For  this  I  am 
indebU'd  U)  Messrs.  W.  G.  Hinson  and  K.  S.  Rivers,  of  James  Island.) 

Another  interesting  instance,  before  the  formation  of  Dorchester  County  in 
1807,  was  the  allotment  of  on«  representiitive  to  one  of  the  old  parishes  in  Col- 
leton County  and  two  to  the  other.  This,  however,  was  from  no  contrariety  of 
Interests.    It  simply  illustrates  these  extralegal  distributions  of  representation. 

2  Cora.  Jour.  S.  C,  MS.,  XXX  VII.,  pt.  II.,  279-81 ;  ib.,  XXXIX.,  pt.  II.,  229. 


COMMONS  HOUSE  OF  ASSEMBLY.         15 

"To  this  House,  guardians  as  they  are  of  the  peo- 
ple's rights, "  says  Rawlins  Lowndes,  I  refer  this  affair  of 
my  having  been  discharged  from  the  bench  without 
cause,  "contrary  to  the  spirit  of  the  English  constitu- 
tion." And  so,  to  these  guardians,  as  in  very  truth 
they  were,  were  referred  petitions  and  appeals  on  every 
violated  liberty.  If  Governor,  Council  and  King  gave 
no  relief,  the  Commons  would  at  least  "resolve", 
have  reports  from  the  Committee  on  Grievances,  and 
excoriate  the  royal  representatives  in  the  government. 

The  great  enemy  of  the  Commons  House  of  Assem- 
bly was  His  Majesty's  Council — the  Jebusites  entrenched 
in  Mt.  Zion,  to  discomfit  whom  was  the  unwearied  work 
of  such  1 8th  century  Davids  as  Christopher  Gadsden. 
Their  long  struggle  raging  around  money  bills  and  end- 
ing in  the  Commons  absolutely  denying  legislative  charac- 
ter to  the  Council  and  for  a  brief  space  absorbing  the 
whole  lawmaking  authority,  is  the  most  exciting  chap- 
ter in  the  parliamentary  history  of  South  Carolina.  Let 
us  now  learn  what  this  Council  was. 


CHAPTER  IV. 

His  Majesty's  Council. 

His  Majesty's  Council,  as  their  official  title  ran, 
were  the  South  Carolina  "King's  friends."  Forget  all 
else,  but  remember  this.  A  large  part  of  the  instruct- 
ions to  Governors  was  always  devoted  to  these  bulwarks 
of  royal  power.  This  body  consisted  of  not  more  than 
twelve  members.  It  is  a  mistake  to  say,  as  is  usual, 
that  the  Council  consisted  of  twelve;  for  the  King's  in- 
structions even  sometimes  only  say  "not  more  than 
twelve."  For  long  periods  there  was  so  small  a  num- 
ber as  eight,  and  the  greater  part  of  the  time  there  were 
some  vacancies.  In  1754,  e.  g. ,  there  were  but  five 
Councillors  in  the  province.' 

A  quorum  of  three  was  allowed  to  act,  though  the 
King  desired  five  if  possible."-^  Twenty-nine  instances 
selected  at  random  from  their  Journals  from  1765  to 
1767  show  an  average  attendance  of  four,  of  whom 
a  majority  were  often  English  placemen. 

As  the  royal  government  made  itself  more  and 
more  obnoxious,  the  post  of  Councillor,  formerly  sought 
as  an  honor,  was  so  disdained  by  the  best  citizens  that 
seats  went  begging  for  months  or  even  years,  and  it 
was  often  with  the  greatest  difficulty  that  the  Governor 
could  assemble  a  corporal's  guard  of  three  in  the  Coun- 
cil chamber. 

The     only     qualifications     required     of    a    Councillor 

1  Pub.  Rec.  S.  C,  MS.,  XXXIX.,  241,  344;  XXX.,  170;  XXXII.,  74,  85,  etc. 

2  lb.,  VIII.,  101 ;  XIV.,  149. 


HIS  MAJESTY'S  COUNCIL.  17 

were  that  he  be  a  gentleman  of  independent  fortune  and 
character,  either  a  native  or  an  Englishman,  and  devot- 
ed to  the  interests  of  the  King. 

The  organization  of  this  body  violated  sadly  the 
rule  of  the  separation  of  powers.  Into  it  were  tumbled 
every  function  of  government  and  every  style  of  ol^cer. 
The  judges,  the  attorney  general,  the  Indian  commis- 
sioner, the  receiver  general  of  His  Majesty's  quit  rents, 
all  upheld  there  the  prerogative  of  their  royal  master. 
The  duties  of  the  Council  were  hardly  less  heterogeneous 
than  its  membership.  It  laid  large  hands  on  both 
executive  and  judicial  as  well  as  legislative  functions. 
In  the  latter  part  of  the  period  we  are  studying  it  is  hard 
to  say  whether  the  Council  was  more  of  a  legislative 
or  of  an  executive  body.  The  character  of  no  other 
branch  of  the  government  under  the  royal  rule  was  so 
revolutionized.  In  later  chapters  that  revolution, 
which  is  much  of  the  best  history  of  South  Carolina, 
will  be  seen  working  itself  out  in  its  proper  relation- 
ships. 

The  executive  functions  of  the  Council  have  al- 
ready been  touched  upon  in  the  description  of  the 
Governor.  Generally  speaking,  they  discussed  and 
advised  upon  every  executive  subject  and  act.  Land 
grants  and  Indian  affairs  were  among  the  most  frequent 
and  important  matters  which  engaged  their  attention. 
In  their  Journals  we  find  frequent  ''talks,"  treaties,  and 
messages  from  such  characters  as  Killagusta,  Prince  of 
Chote,  Johnny  of  Toxana,  Otasitie  of  Ouaratchie, 
Judd's  Friend,  The  Young  Warrior  of  Estatoe,  and 
Skallilosky  of  Chilhowey. ' 

There  is  no  foundation  in  the  King's  instructions  or 

1  E.  g.  CouncU  Jour.,  XXXII.,  (itJO. 


1 8     CONSTITUTIONAL  HISTORY  OF  S.   C. 

in  the  actual  history  for  the  statement  made  by  a  recent 
writer/  that  "nothing  of  importance  could  be  done  by 
the  Governor  without  the  consent  of  the  Council  first 
obtained."  As  most  wise  men  would  have  done,  the 
Governor  usually  asked  the  advice  of  his  Council  and 
usually  followed  it  ;  but  if  he  cared  to  take  the  re- 
sponsibility, he  might  act  without  its  advice  and  against 
its  will. 

In  its  legislative  character,  as  prescribed  by  the 
King,  the  Council  was  given  absolutely  coordinate  pow- 
ers with  the  Commons,  including  by  special  mention 
the  amendment  and  passing  of  money  bills.  Such  a 
claim  could  never  be  admitted  by  their  jealous  rivals, 
the  popular  branch,  a  body  claimingf  for  itself  the 
privileges  of  the  British  Lower  House. 

In  no  respect  did  the  actual  constitution  of  the 
colony  differ  more  from  that  prescribed  by  the  King's 
instructions  than  in  regard  to  the  coordinate  legislative 
power  of  the  Council  and  their  duties  as  a  court  of 
appeal.  Their  judicial  functions  were,  in  theory,  of 
two  kinds  ;  in  reality,  of  but  one.  According  to  the 
royal  instructions,  civil  cases  of  over  ^300  sterling,  or 
of  less  if  involving  important  points  of  law,  or  cases  con- 
cerning the  King's  prerogative  or  revenue,  might  be  ap- 
pealed to  the  Governor  and  Council  as  a  court  of  error. 
In  similar  cases  involving  over  ^500  appeal  lay  still 
further  to  the  King  in  Council.-  The  judges  who  had 
given  the  first  decision,  and  who  were  almost  sure  to  be 
Councillors,  might  discuss  but  not  vote  on  the  appeal. 

1  I'rof.  E.  1..  WJiitney ;  Governmont  of  tho  Colony  of  S.  C,  Johns  Hopkins 
University  .Studies  in  Historieal  and  Political  Science,  Series  Thirteen,  I.-II., 
45. 

2  The  amounts  given  above  apply  to  the  third  quarter  of  the  18th  century. 
At  an  earlier  date  they  were  £100  and  £300  respectively  in  appeals  to  the 
Ooveruor  or  to  the  King.  r  ^  t-t- 


HIS  MAJESTY'S  COUNCIL.  19 

Thus  every  one  fit  to  sit  in  a  court  of  error  was 
likely  to  be  excluded.' 

But  this  is  mere  dry  parchment,  more  futile  than 
Locke's  Fundamental  Constitutions.  The  chief  interest 
is  not  what  the  King  desired  the  constitution  of  South 
Carolina  to  be,  but  what  it  really  was.  In  1770, 
Lieutenant  Governor  Bull  says,  in  writing  to  the 
ministry,  '  'Application  was  made  six  or  seven  years  ago 
to  this  jurisdiction  ;  but  as  it  had  never  been  experienced 
here,"  information  was  sent  for  to  some  of  the  northern 
provinces,  and  meantime  the  case  was  dropped  ;  so  that, 
says  Bull,  that  jurisdiction  remained  at  that  time 
untested.-  Certainly  no  appeal  was  ever  tried  after 
1770.  For  reasons  that  will  appear  in  considering  the 
Circuit  Court  Act  of  1769  appeals  after  that  went  into 
effect  were  rendered  more  unlikely  than  before  to 
occur.  ^ 

Thus  their  judical  duties  were  actually  only  of  a 
chancery  character.  These  functions  were  constantly 
exercised  by  the  Governor  and  Council  as  the  only 
chancery  court  in  the  province."*  Great  inconveniences 
arose  from  the  fact  that  the  legal  members,  attorney 
general  included,  were  often  engaged  as  counsel  in  the 
cases  it  was  their  constitutional  duty  to  judge. ^ 

It  was    this    mixed    character,     mixed    in    personnel 

1  Pub.  Rec.  S.  C  MS.,  XXXI V.,  302-4,  ??  52  and  .53  of  Instructions;  XIV., 
187,  5J71,72,  73. 

2  Pub.  Rec.  S.  C,  MS.,  XXXII.,  37.5. 

3  The  Council  Journal  for  1765  contains  a  paper  by  Attorney  (ieneral  John 
Kutledge,  written  at  the  request  of  the  Council,  explaining  tliat,  in  his  opin- 
ion, it  was  the  intention  of  the  instructions  that  appeals  should  be  called  up  by 
writ  of  error  In  sucli  and  such  a  style.  Quite  lilcely  tliis  paper  was  connected 
with  the  same  case  we  luive  just  seen  cited  by  Lieutenant-Governor  Bull. 
Council  Jour.,  XXXII.,  .507-12. 

4  Council  Jour.  S.  C,  MS.,  XXXVIII.,  210;  i'ub.  Rec.  S.  C,  MS.,  any  Gover- 
nor's instructions;  newspaper  advertisements,  etc. 

5  Pub.  Rec.  S.  C,  MS.,  XXXII.,  375. 


20     CONSTITUTIONAL  HISTORY  OF  S.   C. 

and  in  function,  that  brought  upon  the  Council  its  never 
ceasing  woes.  In  the  later  years  of  the  royal  govern- 
ment, its  administrative  duties  were  fast  absorbing  its 
legislative.  This,  coupled  with  the  fact  that  George 
III.'s  autocratic  policy  filled  it  with  subservient  place- 
men, holders  of  the  various  provincial  offices  in  his  gift, 
makes  its  Journals  more  like  the  minutes  of  an  executive 
board  than  the  records  of  a  house  of  the  legislature. 
Nothing  can  better  emphasize  its  unfitness  to  make  laws 
for  South  Carolina  than  the  following  description  of  its 
condition  on  the  19th  of  December,   1774:^ 

William  Bull,  Lieutenant-Governor. 

Sir  Egerton  Leigh,  Attorney  General  ;  absent  in 
England  five  months. 

Daniel  Blake  ;  absent  in  England  over  two  years. 

John  Burn  ;  ditto. 

Thomas  Skottowe,    Secretary. 

Thomas  Knox  Gordon,  Chief  Justice ;  absent  on 
circuit  nearly  ten  weeks  in  the  year. 

W.  H.  Drayton  ;  a  South  Carolinian,  who  was  later 
expelled  for  his  defence  of  American  liberty. 

Bernard  Elliott  ;  South  Carolinian,  who  resigned 
when  the  agitation  against  the  mother  country  grew 
strong,  in  1775. 

Thomas  Irvin,  Receiver  General  of  His  Majesty's 
Quit  Rents. 

John  Stuart,  Superintendent  of  Indian  affairs  ;  "'an 
ambulatory  Councillor." 

John  Drayton  is  temporarily  ignored,  as  he  never  at- 
tended, being  very  old.     There  were  thus  two  vacancies. 

1  Pub.  Kec.  S.  C,  MS.,  XXXIII.,  228:  XXXVI.,  279. 


CHAPTER  V. 

The  Courts  Before  1769. 

The  equity  court  has  been  treated  above,  in  connec- 
tion with  the  Council.  The  further  judicial  system 
of    the  colony  before    1769  was  organized  as  follows: 

I.  The  King  in  Council. 

II.  The  Governor  and  Council. 

III.  Court  of  common  pleas  and  general  sessions. 

IV.  Justices  of  the  peace. 

V.  Courts  for  the  trial  of  slaves  and  other  persons 
of  color. 

VI.  Ordinary. 

I.  and  II.  were  never  used  in  South  Carolina.  They 
have  been  described  above  at  pp.   18-19. 

III.  Until  1769,  or  more  properly  1772,  there  was 
but  one  court  of  general  sessions  and  common  pleas 
in  South  Carolina  ;  this  met  only  in  Charleston.  Much 
of  the  time  it  was  presided  over  by  the  chief  justice 
alone.  Four  assistant  judges  were  allowed,  though 
much  of  the  time  none,  or  almost  none,  existed.  In 
1765  there  was  a  chief  justice  and  one  assistant,  or 
associate  judge;  from    1766  on  there  was  a  full  bench.' 

All  the  judges  sat  on  the  same  bench  and  had 
an  equal  voice.  The  complete  control  of  the  court 
which  this  gave  the  assistant  judges,  who  were  before 
1772  generally  if  not  always  South  Carolinians,  and  the 
way  in  which  they  used  it  in  controverting  the  Stamp  Act 

1  Com.  Jour.  S,  C,   MH.,  XXXVII.,    pt.    II.,  97 ;    Pub.    Rec.   8.    C,  MS., 
XXXI.,  99. 


22     CONSTITUTIONAL  HISTORY  OF  S.   C. 

led  Governor  Lord  Montagu  to  recommend  that  some 
steps  be  taken  to  curb  their  growing  power  and  increase 
that  of  the  chief.  ^  A  robe  and  a  wig  could  not  change 
Englishmen  from  Englishmen  and  South  Carolinians 
from  South  Carolinians  ;  so  we  may  expect  to  find  vio- 
lent altercations  and  outright  squabbles  among  the  high 
priests  in  justice's  own  temple. 

The  chief  justice  was  nearly  always  an  imported 
Englishman.  The  native  South  Carolinians  who  filled 
the  position  of  assistant  before  the  Act  of  1769  went  in- 
to effect  were  generally  not  bred  to  the  law,  but,  says 
Lieutenant  Governor  Bull,  were  gentlemen  recommend- 
ed solely  by  their  integrity  and  common  sense.  We 
can  understand  how  a  trained  English  barrister,  striving 
to  uphold  the  royal  prerogative  by  the  letter  of  the  law, 
and  four  South  Carolinians  equally  determined  to  main- 
tain colonial  liberties  by  common  sense,  would  often 
clash. 

IV.  In  the  period  under  consideration  we  find  the 
term  "justice  of  the  peace  and  quorum."  In  some  com- 
missions the  words  "and  quorum"  did  not  appear.  The 
difference  was  that  for  certain  purposes  a  justice  of  the 
peace  and  quorum  was  required,  and  that  a  justice 
simply  of  the  quorum  exercised  notorial  rather  than 
judicial  duties.      The  distinction  is  no  longer  made. 

From  the  settlement  of  the  colony  justices  of 
the  peace  were  important  officials,  because  of  their 
special  jurisdiction  over  slaves  and  persons  of  color,  and 
because  of  the  lack  of  courts  of  superior  jurisdiction  out- 
side Charleston.  The  Assembly  was  constantly  striving 
to  make  them  as  effective  and  as  useful  to  the  colony  as 
possible. 

1  Pub.  Rec.  S.  C,  MS.,  XXXI.,  80. 


COURTS   BEFORE  1769.  23 

In  1765  the  jurisdiction  of  justices  of  the  peace 
in  civil  cases  extended  to  ^20  currency.^  The  changes 
of  detail  are  too  numerous  to  specify. 

A  point  of  importance  is  that  two  justices,  one 
being  of  the  quorum,  might  grant  habeas  corpus." 
They  could  also  grant  bail  in  may  cases.  ^ 

Slaves  and  "servants"  being  maltreated  or  neglect- 
ed might  complain  to  a  justice  of  the  peace,  who,  some- 
times alone,  sometimes  with  two  freeholders,  had 
authority  to  warn  the  master  or  overseer,  and  on  a 
second  offence  to  punish.'* 

The  Governor,  acting  for  the  King,  appointed 
justices  of  the  peace  during  pleasure,  and  on  the  advice 
of  the  Council  suspended  them  for  due  cause.  Yet  the 
Assembly  made  all  laws  by  which  they  were  governed. 

The  jurisdiction  of  justices  of  the  peace  was  confined 
to  their  own  district  or  county.  In  1765  there  were 
250  justices.''  Further  matter  of  importance  regarding 
these  officers  is  found  under  the  next  head. 

V.  So  early  as  1690  we  find  Seth  Sothel's  name 
affixed  to  a  law  for  establishing  courts  to  try  slaves. 
There  were  no  juries,  no  records,  and  no  report  to  any 
authority.  Two  magistrates  and  three  freeholders  had 
absolute  and  final  jurisdiction.  The  owner  was  com- 
pensated for  the  loss  from  execution  of  his  human  proper- 
ty. This  system  continued  as  the  method  for  the  trial 
of  slaves  until  the  Civil  War. 

In  1740  the  freeholders  were  fixed  at  not  less  than 
three    nor    more  than  five.*^     Trial  was  summary,   and 

1  statutes  at  Large  of  S.  ('.,  HI.,  2(i8. 

2  Statutes  at  Large  ofS.  C,  IL,  400. 

3  lb.,  II. ,  452,  -182. 

4  lb.,  III.,  17. 

5  S.  (.'.  Gaz.,  Oct.  19-31,  1765. 

6  Statutes  at  Large  of  S.  C,  VIL,  345,  400. 


24     CONSTITUTIONAL  HISTORY  OF  S.   C. 

execution  of  sentence  without  delay  or  appeal. 

One  magistrate  and  two  freeholders  could  form 
a  court  for  the  trial  of  offences  whose  punishment 
did  not  extend  to  loss  of  life  or  member.  Prescrib- 
ing punishments  less  than  death  was  in  the  power  of 
the  judges. 

VI.  Some  notice  may  be  inserted  here  of  the 
court  of  probate,  or  ordinary,  as  it  was  called.  Until 
1799  there  was  in  South  Carolina  but  one  ordinary. 
His  office  was  in  Charleston.^ 

The  government  of  the  colony  of  South  Carolina 
was  more  defective  in  the  organization  of  its  judiciary 
than  in  any  other  respect.  For  this  reason  the  forma- 
tion of  a  proper  system  was  afterwards  found  to  be  the 
most  perplexing  constitutional  problem  of  the  early 
years  of  statehood. 

Such  an  epoch  making  change,  involving  so  much 
before  and  after  it  in  South  Carolina  history,  took  place 
in  the  court  system  with  the  Act  of  1 769  that  a  separate 
chapter  must  be  given  to  that  Act,  the  causes  which  pro- 
duced it,  and  the  place  which  it  occupies  in  the  develop- 
ment of  the  State. 

1  statutes  at  Large  of  S.  C,  VII.,  294. 


.     CHAPTER  VI. 

Regulators,  and  the   Circuit  Court    Act 
of  1769. 

In  a  day  of  no  railways,  when  the  greater  part  of 
South  Carolina  was  an  almost  roadless  wilderness,  to 
have  but  one  court,  and  that  in  distant  Charleston,  left 
most  of  the  province  largely  deprived  of  the  adminis- 
tration of  justice.  During  the  second  quarter  of  the 
1 8th  century,  ^  the  back  country  began  to  swarm  with 
immigrants.  The  ever  increasing  tide,  southward  from 
Pennsylvania  and  the  intervening  colonies  along  the 
mountain  walls,  and  across  the  sea  through  Charleston, 
together  with  the  natural  growth  of  a  very  fecund  popu- 
lation, gave  the  back  country,  even  before  the  Revolu- 
tion, as  compared  with  the  low  country,  a  majority. 
By  1790  this  amounted  to  four  to  one.  In  1769  the 
balance  was  about  even  or  had  already  turned.' 

In  this  back  country  was  building  the  future  yeo- 
manry of  the  commonwealth;  there  were  coming  to  im- 
portance the  families  who  were  to  form  a  newer  aristo- 
cracy, whose  names  now  appear  extensively  in  the 
nomenclature  of  the  counties  of  the  State.  These  peo- 
ple were  to  take  their  first  share  in  the  overt  history  of 
their  country  in  the  Revolution,  and  were  finally  to 
capture  and  rule  the  commonwealth,  in  spite  of  the 
oligarchic  coast  element  which  kept  them  so  long  unre- 
cognized.     There  was  much  that  was  noble  in  this  young 

1  Pub.  Rec.  S.  C,  MS.,  XXXII.,  122. 


26     CONSTITUTIONAL  HISTORY  OF  S.    C. 

society;  but  as  in  all  new  communities,  there  was  much 
that  was  bad.  This  was  aggravated  by  the  fact  that 
under  the  system  of  centralization  which  prevailed  in 
South  Carolina,  the  back  countrymen  could  not  take  a 
part  of  the  government  with  them  as  in  states  where 
every  local  group  is  an  automatic  governmental  unit. 
Population  had  run  ahead  of  government. 

In  1767  one  hundred  and  fifty,  or  some  said  even 
fifteen  hundred  men  had  bound  themselves  into  a  league 
to  defy  the  law.^  These  had  their  places  of  rendezvous, 
where  they  concocted  their  depredations,  and  when  at- 
tacked gathered  in  such  numbers  as  to  defy  the  weak  arm 
of  justices  of  the  peace  and  deputy  sheriffs.  When  the 
provost  marshal,  the  militia,  the  British  regulars,  and 
the  posse  commitat'iis  marched  out  to  bag  a  gang  of 
outlaws,  it  was  like  the  meeting  of  two  small  armies.^ 

Since  the  magistrates  could  not,  and  the  King's 
court  in  Charleston  either  would  not  or  could  not  pro- 
tect them  against  such  villians,  said  the  back  country- 
men, the  good  citizens  combined  into  companies  called 
"regulators."  The  regulators  succeeded  to  a  great  ex- 
tent in  suppressing  the  lawless  element.  Violence  and 
riots,  however,  continued  to  occur;  for  about  a  year  and 
a  half  before  the  fall  of  1768  they  were  especially 
tumultuous.''  In  the  eye  of  the  law  the  regulators  were 
of  course  always  outlaws.  Suits  were  brought  by  per- 
sons whom  they  had  whipped ;  but  the  whippers  refused 
to  be  arrested.  Deputy  sheriffs  riding  out  to  arrest 
them    were    themselves    liable    to    be      captured     and 


1  Pub.  Rec.  S.  C,  MS.,  XXXI.,  122. 

2  Pub.   Rec.  S.  C,  ;MS.,  Vol.   III.  ol'the  extra  numbers  including  the  lost 
Journals,  596,  638. 

3  Pub.  Rec.  S.  C.,!MS.,  XXXII.,  36  et  sq. 


REGULATORS,   COURT  ACT  ijdg.  27 

sentenced  by  the  regulator  "courts"  to  be  chastised.^ 

As  early  as  1754,  and  perhaps  before,  the  back 
countr3men  were  sending  in  petitions  for  courts  and  for 
the  redress  of  other  grievances  that  they  continued  to 
mourn  under  until  after  the  Rovolution."-^  The  grand 
jury  of  the  province  took  it  up.  At  least  as  early  as 
1765  Lieutenant  Governor  Bull  recommended  that 
courts  be  established  in  the  back  country.  The  Com- 
mons were  willing.  A  proposition  to  establish  county 
and  precinct  courts  was  defeated,  but  they  voted  to 
establish  circuit  courts.  These  were  to  be  instituted 
at  four  places:  in  Granville  and  Craven  counties,  and  at 
Congarees  and  Waterees.  On  March  the  28th  this  bill 
passed  the  second  reading  and  by  a  vote  of  16  to  15 
was  sent  to  the  Council.^ 

As  before  remarked,  the  Council  Journal  for  this 
period  is  an  administrative  record  book.  Only  rarely 
does  it  make  mention  of  anything  legislative.  No  allu- 
sion is  found  there  to  this  Act.  It  never  came  back  to 
the  Commons  for  a  third  reading,  and  the  inference  is 
that  it  met  its  death  in  the  other  body. 

In  1766  the  Commons  again  appointed  a  commit- 
tee to  draft  another  bill.^  But  not  until  April  12,  1768, 
did  such  an  act  run  the  triple  gauntlet  of  Commons, 
Council  and  Governor;  and  then  a  fourth  power  was 
ready  to  strike  it  dead  at  the  goal.      The    King   forbad. 

Great  was    the    chagrin    at    this    unexpected    rebuff, 

1  E.  g.,  Council  Jour.  S.  C,  MS.,  XXXIV.,  US,  189  et  sq.,  219  et  sq.,  also 
XXXII.,  36  et  sq. 

2  Pub.  Rec.  S.  C,  MS.,  XXVI.,  119;  Com.  Jour.  S.  C,  MS.,  XXXVIII.,  .SO. 

3  Com.  Jour.  S.  C,  MS.,  XXXVII.,  pi.  I.,  3,  81,  74.  It  was  common  till  long 
after  the  Revolution  to  send  a  bill  from  one  House  to  the  other  after  a  second 
reading.  If  passed  in  the  second  House,  it  was  returned  to  the  first  for  a  third 
reading. 

4  Com.  Jour.  S.  C,  MS.,  XXXVII.,  pt.  II.,  237;  XXXVIII.,  11. 


28     CONSTITUTIONAL  HISTORY  OF  S.   C. 

involving  the  peace  of  nearly  the  whole  province  and  the 
well-being  of  all.  The  disorders  in  the  back  country 
had  subsided  in  expectation  of  relief,  and  now  were  they 
again  to  be  thrown  indefinitely  into  anarchy  ?^  The  As- 
sembly reenacted  their  court  bill,  and  on  July  22,  1769, 
the  whole  Commons  House  carried  it  to  the  Governor 
and  desired  him  to  sign.  Governor  Lord  Montagu  re- 
plied that  his  instructions  made  it  impossible;  he  was 
very  sorry;  he  was  sick;  he  would  soon  be  sailing  for 
England,  where  he  would  do  all  in  his  power  in  their 
interests. 

The  Commons  were  surprised;  they  were  hurt;  they 
talked  of  "anarchy"  and  "ruin."  Four  thousand  back 
countrymen  were  threatening  to  come  a  hundred  and 
fifty  miles  and  capture  the  polls  and  force  a  due  atten- 
tion to  their  claims." 

We  remember  the  steady  policy  of  the  King  to  force 
the  colonies  to  settle  fixed  salaries  attached  to  the  royal 
offices.  A  salary  law  once  passed,  his  appointees  would 
be  safe;  a  proper  use  of  the  prerogative  of  prorogation  and 
a  subservient  Council  might  forever  prevent  its  repeal. 
But  under  the  system  of  giving  each  officer  individually 
a  certain  amount  each  year,  prorogation  meant  no  pay; 
for  no  continuous  salary  law  provided  a  steady  stream 
of  cash.  But  here  at  last  Majesty  had  Commons  upon 
the  hip.  The  Governor  sorrowfully  informed  the  House 
that  he  was  imperatively  forbidden  to  sign  any  Act  that 
did  not  leave  to  the  King  the  appointment  of.  sheriffs 
through  the  Governor  and  Council  and  attach  regular 
salaries  to  the  offices,  and  not  to  the  particular  persons, 
of  attorney-general  and  clerk  of  court. ^ 

1  Com.  Jour.  S.  C,  MS.,  XXXVII.,  pt.  II.,  698. 

2  Pub.  Rec.  8.  C,  MS.,  XXX.,  122. 

3  Com.  Jour.  S.  C.,  XXX VIII.,  74,  78. 


REGULATORS,   COURT  ACT  1769.  29 

And  then  to  allow  a  quiet  digestion  of  this  lump, 
the  Governor  issued  his  proclamation  proroguing  the  As- 
sembly for  half  a  day.  In  the  morning  came  a  polite 
message  explaining  the  prorogation  and  desiring  the 
House  to  frame  another  bill,  free  from  those  objections. 
The  House  proceeded  to  try  again.  On  July  29,  1769, 
was  passed  the  Act  which,  obviating  except  in  one  par- 
ticular the  King's  objections,  was  able  on  the  29th  of 
November  following  to  obtain  the  royal  approval.  On 
February  21,  1770,  the  King's  assent  was  announced, 
the  House  set  the  printing  press  to  work  turning  out  the 
money,  and  work  was  at  once  commenced  on  the  court 
houses  and  jails.'  On  May  19,  1772,  Lieutenant  Gov- 
ernor Bull  issued  his  proclamation  that  all  was  ready  for 
the  law  to  go  into  effect;  on  May  30  the  judges  appoint- 
ed the  sheriffs,  and  in  November,  1772,  was  held  the 
first  court  of  common  pleas  and  general  sessions  ever 
convened  in  South  Carolina  outside  the  city  of  Charles- 
ton.^ 

Pari  passu  with  the  Circuit  Court  Act  went  the  re- 
form of  the  shrievalty.  There  had  been  one  provost 
marshal  for  the  whole  province,  a  capital  grievance, 
which  the  Commons  carried  to  the  very  foot  of  the 
throne.  The  ofBcer  was  a  royal  patentee  and  the  office 
was    personal    property,    transmitted,    sold    or  gambled 

I  Com.  .lour.  K.  C.,  MS.,  XXXVIII.,  274  ;  Couiu-il  Jour.,  MS.,  XXXV.,  2{t. 

2S.  C.  Gaz  ,  May  28,  1772;  Dec.  10,  1772.  In  the  Statues  at  Largo  of  S.C.,  in  ten 
volumes,  the  first  part  edited  by  Dr.  Thos.  Cooper,  the  latter  by  Dr.  IXavid  J. 
McC'ord,  this  law,  which  occurs  at  VII.,  203,  is  dated  by  Dr.  McCord  ,\pril  12, 
1768.  The  history  of  the  Act  as  recouuted  ubove  shows  the  mi.stake  of  this. 
Theactof  1768  was  vetoed  by  the  King.  The  Act  given  by  Pr.  McCord  is  the 
one  passed  in  176)t  and  approved  by  the  King,  for  it  conforms  to  the  royal  re- 
quirements, except  that  not  the  Governor,  but  the  judges,  tliemselves  royal 
appointees,  should  appoint  the  sherifTs.  Judge  Brevard  in  his  sivetch  of  the 
legislative  history  of  South  Carolina  gives  1769  as  the  date  of  the  .\ct.  He  Is 
quoted  at  length  in  the  prefatory  portion  of  the  Statutes  at  Large,  I.,  431. 
This  volume  is  edited  by  Dr.  Cooper. 


30     CONSTITUTIONAL  HISTORY  OF  S.   C. 

with  under  certain  limitations.^  The  holder  at  this  time 
was  Richard  Cumberland,  who  had  never  been  in  South 
Carolina,  and  who  exercised  his  lucrative  sinecure 
through  Roger  Pinckney,  his  deputy."  In  1768  the  As- 
sembly appropriated  ;^3 5. 000  currency,  equal  to  ^5,000 
sterling,  to  recompense  Mr.  Cumberland  for  the  aboli- 
tion of  his  oiBce,  the  money  to  be  paid  when  the  King 
should  assent  to  the  Circuit  Court  Act.  Thus  like 
mediaeval  burghers  did  the  South  Carolinians  buy  this 
liberty.  "^ 

The  Circuit  Court  Act  of  1769  divided  the  pro- 
vince into  seven  districts,  in  each  of  which  the  common 
pleas  and  general  sessions  were  held  twice  a  year,  ex- 
cept in  Charleston,  where  they  were  held  three  times. 
Each  district  had  its  own  sheriff,  a  resident  within  its 
bounds,  who  was  appointed  by  the  judges.  Under  the 
permission  granted  the  judges  to  make  reasonable  rules, 
they  divided  the  six  districts  out  of  Charleston  into  two 
circuits  and  apportioned  them  among  themselves. 
Camden,  Cheraws  and  Georgetown  were  called  the 
Northern  Circuit;  Orangeburg,  Ninety-Six  and  Beaufort, 
the  Southern.''  Two  judges  rode  each  circuit;  often  two 
sat  on  the  same  bench . 

All  seven  courts  were  of  like  jurisdiction  and  power. 
Yet  a  distinction  was  given  to  that  in  the  capital;  in 
civil  causes  all  writs  and  process  issued  from  and  were 
returnable  to  the  court  of  common  pleas  in  Charleston 
through  the  sheriff  of  the  district  concerned,  and  all  pro- 
ceedings were  conducted  in  that  court  until  issue  was 
joined.      The  actual  trying  of  the  case   was  then   con- 

1  Pub.  Rec.  S.  C,  XXVIII.,  195,  197. 

2  Pub.  Rec.  S.  C,  MS.,  XXX.,  124;  XXXI.,  236,  251. 

3  Com.  Jour.  S.  C,  MS.,  XXXVII.,  pt.  II.,  661,  675. 

4  S.  C.  Gaz.,  Dec.  10,  1772 ;  Dec.  20, 1773. 


RE G ULA  TORS,    COUR T  ACT  1769.  3 1 

ducted  in  the  district  in  which  it  arose. ^  In  1769  this 
promised  to  be  convenient  for  the  judges,  and  more- 
over the  fees  poured  into  Charleston.  The  practice  was 
found  to  be  such  a  hardship  that  in  1789  it  was  abohsh- 
ed  and  every  court  was  given  complete  control  of  its  own 
writs  and  process.^ 

The  importance  of  the  Act  of  1769  was  threefold. 
First,  it  was  the  greatest  step  that  had  ever  been  taken 
for  the  elevation  of  the  back  country.  Almost  imme- 
diately the  Lieutenant  Governor  wrote  to  England  that  a 
wonderful  improvement  had  been  wrought  in  the  life  of 
the  people.  Second,  it  drew  the  up  country  and  the 
low  country  together.  Lawyers  and  judges  returning 
from  the  first  circuit  expressed  themselves  as  amazed  at 
what  they  had  learned  of  these  up  countrymen,  who, 
they  said,  would  with  proper  advantages  make  as  fine  a 
population  as  any  upon  earth. ^  Third,  it  was  really  the 
first  governmental  organization  of  that  larger  part  of  the 
province  outside  the  old  parishes.  The  seven  judicial 
districts  were  the  basis  of  all  later  subdivisions.  Thus 
this  measure  was  the  parent  of  all  administration  of  gov- 
ernment in  the  greater  part  of  South  Carolina  ;  and 
when,  in  the  fulfilment  of  an  ideal  republicanism,  a 
politically  educated  people  manage  the  whole  of  their 
local  affairs  in  townships,  the  completed  system  must 
look  back  to  the  act  of  1 769  as  its  first  ancestor. 

1  statutes  at  Large  of  S.  C,  VII.,  200. 

2  Statutes  at  Large  of  S.  C,  VII.,  253. 

3  S.  C.  Gaz.,  Dec.  10,  1772. 


CHAPTER  VII. 

The  Stamp  Act. 

The  latent  determination  of  the  people  of  South 
Carolina  to  resist  even  the  authority  of  Parliament  if 
that  authority  touched  upon  their  rights  was  first  brought 
to  expression  in  the  resistance  to  the  Stamp  Act.  This 
chapter  in  the  history  is  so  different  from  all  else  treated 
of  in  the  present  study,  except  in  the  underlying  princi- 
ple of  the  assertion  of  the  right  to  be  self-governed, 
that  to  insert  it  in  chronological  order  among  the  events 
which  are  next  to  occupy  our  attention  would  break  the 
continuity  of  development  in  the  consideration  of  the 
purely  internal  history.  The  Stamp  Act  agitation 
serves  tnorever  more  satisfactorily  than  any  other  event 
to  exhibit  in  action  the  government  whose  outlines  we 
have  sketched. 

South  Carolina  was  driven  by  England  from  her 
attachment  to  the  mother  country.  The  Stamp  Act 
precipitated  the  struggle  which  in  one  short  decade  was 
to  eventuate  in  the  most  sincere  devotion  to  the  parent 
state  being  supplanted  by  an  irreconcilable  antagonism. 

The  Stamp  Act  was  to  go  into  effect  on  November 
I,  1765.  On  October  18  the  ship  bearing  the  stamps 
and  stamped  paper  arrived  in  Charleston  harbor.  The 
provincial  press  had  for  weeks  been  full  of  agitation 
against  the  law.  Such  a  state  of  hostility  was  manifest 
in  the  public  mind  that  Lieutenant  Governor  Bull  se- 
cured the  papers  in  Fort  Johnson  and  strengthened  the 


THE  STAMP  ACT.  33 

garrison.  In  Charleston  popular  feeling  began  its  visi- 
ble demonstrations  on  the  morning  after  the  arrival  of 
the  stamps,  when  effigies  and  threatening  placards  ap- 
peared at  the  most  conspicuous  places  in  the  city. 

Processions,  concourses,  manifestoes,  threats  against 
the  stamp  officers,  continued  for  nine  days.  These  gen- 
tlemen had  taken  refuge  in  the  fort,  under  the  same  pro- 
tection as  the  detested  stamps.  The  continued  demon- 
strations awed  the  officers  into  submission,  and  on  Sun- 
day evening,  October  27,  a  renunciation  by  them  of  their 
positions  was  read  to  the  Assembled  populace.  It  was 
greeted  with  long  continued  shouting  and  the  ringing  of 
the  bells  unmuffled  for  the  first  time  since  the  i8th. 

On  the  next  morning,  Monday  the  28th,  St. 
Michael's  great  steeple  was  again  jubilant  and  chimed 
as  for  a  holiday.  A  number  of  citizens  went  to  the 
fort  and  returned  with  the  stamp  officers,  Messrs.  Saxby 
and  Lloyd.  At  noon  they  landed  from  a  boat  bearing 
in  its  bow  a  "union  flag"  with  laurel  on  the  staff,  and  in 
the  centre,  "Liberty."  At  the  wharf  were  gathered 
seven  thousand  people,  it  was  estimated,  the  largest  con- 
course ever  assembled  in  the  province.  There  was  read 
a  new  and  most  explicit  declaration  signed  and  sealed 
by  Lloyd  and  Saxby  not  to  exercise  any  duties  of  stamp 
officers  nor  to  aid  or  countenance  such  exercise  by  any 
other  person  until  Parliament  had  acted  on  the  united 
petition  of  all  America.  At  this,  the  people  shouted 
and  reshouted;  the  bells  rang;  hautboys,  drums  and 
violins  sounded;  the  ships  displayed  their  colors  and  the 
cannon  boomed. 

That  night  the  streets  were  patrolled  for  the  pro- 
tection of  the  persons  and  property  of  the  two  obnox- 
ious officials;  but  the  people,  their  object  accomplished, 


34     CONSTITUTIONAL  HISTORY  OF  S.    C. 

desired  no  violence.^ 

The  part  played  by  the  unorganized  populace  must 
not  be  underestimated.  It  was  this  inflexible  and  all 
but  universal  determination  to  prevent,  even  by  unlawful 
violence,  the  execution  of  the  Act  which  made  possible 
the  splendid  stand  taken  by  the  Commons  House  of  As- 
sembly and  the  successful  and  revolutionary  course  of 
the  court  of  common  pleas  in  rendering  the  law  nuga- 
tory. In  all  reason,  the  state  of  the  popular  mind 
should  be  considered  first,  as  the  dynamic  source  from 
which  all  the  other  organs  d^ived  their  power. 

Lieutenant-Governor  Bull  expressed  to  the  ministry 
his  apprehension  that  the  Assembly  would  take  measures 
repugnant  to  the  Parliament  of  Great  Britian.  In  this 
he  was  no  bad  prophet,  as  "certain  resolutions  declara- 
tory of  what  they  conceived  to  be  their  rights  with  re- 
gard to  taxation  in  America"  abundantly  proved.  In 
vain  hopes,  the  Lieutenant-Governor  ordered  a  dissolu- 
tion; but  a  new  election  returned  the  same  old  leaders. 
Dissolutions  never  helped  the  royal  cause. 

South  Carolina  was  one  of  the  nine  colonies  rep- 
resented in  the  Stamp  Act  Congress  at  New  York  in 
October,  1765.  When  the  Assembly  met  on  November 
25,  the  first  four  days  were  devoted  to  the  report  of  the 
returned  delegates,  who  were  thanked  "for  the  services 
they  had  done  their  country."^  On  the  29th  the  House 
appointed  Christopher  Gadsden,  Charles  Pinckney,  John 
Rutledge,   James  Parsons  and  Thomas  Wright   a  com- 

1  S.  C.  Gaz.,  Oct.  19-31,  1765.  Not  only  is  there  no  foundation  for  the  tradi- 
tion published  in  several  places  that  Ft.  Johnson  was  captured  and  the  stamps 
Iniiuediately  sent  back  to  H^ngland  as  an  alternative  to  burning  them,  but  the 
contemporary  newspaper  accounts,  the  official  correspondence  of  Lieutenant- 
Governor  Hull,  the  reports  of  Chief  Justice  Skinner,  the  records  of  the  Court 
of  Conijuon  Pleas,  all  very  full,  contradict  the  possibility  of  such  a  thing. 

2  Com.  Jour.  8.  C,  MS.,  XXXVII.,  pt.  II.,  15,  et  sq. 


THE  STAMP  ACT.  35 

mittee  to  draft  suitable  resolutions.  Their  report,  made 
and  adopted  that  same  day,  forms  a  bill  of  rights  so  no- 
ble in  logic  and  conception,  as  it  moves  with  redoubled 
strength  from  hight  to  hight,  that  it  must  ever  have  a 
place  in  the  constitutional  history  of  South  Carolina: 

"This  House,  sincerely  devoted,  with  the  warmest 
sentiments  of  devotion  and  duty,  to  His  Majesty's  per- 
son and  government,  inviolably  attached  tD  the  present 
happy  establishment  of  the  Protestant  succession,  and 
with  minds  deeply  impressed  by  a  sense  of  the  present 
and  impending  misfortunes'  of  the  people  of  this  prov- 
ince, esteem  it  their  indispensable  duty  to  their  constit- 
uents, to  themselves,  and  to  posterity,  to  come  to  the 
following  resolutions  respecting  their  most  essential 
rights  and  liberties,  and  the  grievances  under  which  they 
labor  by  reason  of  several  late  acts  of   Parliament. 

"1st.  Resolved,  That  His  Majesty's  subjects  in 
this  province  owe  the  same  allegiance  to  the  crown  of 
Great  Britian  as  is  due  from  his  subjects  born  there. 

"2d.  That  His  Majesty's  subjects  in  this  province 
are  entitled  to  all  inherent  rights  and  liberties  of  his  nat- 
ural born  subjects  within  the  kingdom  of  Great  Britian. 

"3d.  That  the  inhabitants  of  this  province  appear 
also  to  be  confirmed  in  all  the  rights  aforementioned, 
not  only  by  their  charter,  but  by  an  Act  of  Parliament 
of  the  13th  George  H. 

"4th.  That  it  is  inseparably  essential  to  the  free- 
dom of  the  people  and  the  undoubted  right  of  English- 
men, that  no  taxes  be  imposed  upon  them  but  with  their 
consent  given  personally  or  by  their  representatives. 

"5th.  That  the  people  of  this  province  are  not 
and  from  their  local  circumstances  cannot  be  represented 
in  the  House  of  Commons  of  Great  Britian,  and  further 


36     CONSTITUTIONAL  HISTORY  OF  S.   C. 

that  in  the  opinion  of  this  House  the  several  powers  of 
legislation  in  America  were  constituted  in  some  measure 
upon  the  apprehension  of  this  impracticability. 
*  "6th.  That  the  only  representatives  of  the  people 
of  this  province  are  persons  chosen  therein  by  them- 
selves, and  that  no  taxes  ever  have  been,  or  can  be,  con- 
stitutionally imposed  upon  them,  but  by  the  legislature 
of  this  province. 

"7th.  That  all  supplies  to  the  crown  being  free 
gifts  of  the  people,  it  is  unreasonable  and  inconsistent 
with  the  principles  of  the  British  constitution  for  the 
people  of  Great  Britian  to  grant  to  His  Majesty  the 
property  of  the  people  of  this  province. 

"8th.  That  trial  by  jury  is  the  inherent  and  inval- 
uable right  of  every  British  subject  in  this  province. 

"9th.  That  the  late  Act  of  Parliament  entitled 
*An  Act  for  granting  and  applying  certain  stamp  duties 
and  other  duties  on  the  British  colonies  and  plantations 
in  America,  etc.,'  by  imposing  taxes  on  the  inhabitants 
of  this  province,  and  the  said  Act  and  several  other  acts, 
by  extending  the  jurisdiction  of  the  courts  of  admiralty 
beyond  its  ancient  limits,  have  a  manifest  tendency  to 
subvert  the  rights  and  liberties  of  the  people  of  this 
province. 

"1 8th.  That  it  is  the  right  of  the  British  subjects 
in  this  province  to  petition  the  King  or  either  House  of 
Parliament. 

"Ordered  that  these  votes  and  resolutions  be  signed 
by  the  Speaker  and  printed  and  made  pubHc,  that  a  just 
sense  of  liberty  and  the  firm  sentiments  of  the  loyalty 
of    the    representatives    of    the  people  of  this  province 


THE  STAMP  ACT.  37 

may  be  known  to  their  constituents  and  transmitted  to 
posterity.  "* 

Note  the  calm,  irrefragible  logic,  strengthening  the 
position  with  each  advance,  until  the  climax  in  numbers 
6  and  7.  The  first  two  resolutions  are  astute.  Num- 
ber I  lays  it  down  that  the  South  Carolinians  owe  the 
same  allegiance  to  the  King  as  natural  born  subjects  in 
Great  Britian;  number  2  claims  as  a  necessary  conse- 
quence all  the  rights  of  those  native  born  Englishmen. 
The  committee  that  presented  these  resolutions  con- 
tained three  men  of  national  reputation  in  the  Revolu- 
tionary period;  a  bill  of  rights  three  of  whose  five 
framers  were  Christopher  Gadsden,  Charles  Pinckney 
and  John  Rutledge  is  no  insignificant  document. 

The  Stamp  Act  early  got  into  the  courts  in  South 
Carolina.  The  struggle  there  was  intensified,  because 
the  royal  and  home  rule  elements  in  the  provincial  gov- 
ernment met  there  on  the  same  plane  and  in  perfect  an- 
tagonism. On  November  13,  1765,  Chief  Justice  Skin- 
ner,"^ who  since  his  arrival  from  England  had  presided 
alone,  ordered  that  without  stamps  no  legal  business 
could  be  done,  and  adjourned  the  court.  In  this  court, 
however,  was  to  be  fought  the  best  strategic  battle  of 
the  constitutional  struggle. 

Riots,  insults  and  threats  against  royal  of^cers  con- 
tinued. It  became  unsafe  for  anyone  who  failed  to  join 
the  demonstrations,  or  to  at  least  give  tacit  approval. 
Chief  Justice  Skinner  opposed  a  bolder  front  to  the  pop- 

1  Com.  Jour.  S.  C,  MS.,  XXXVII.,  pt.  II.,  26-;il. 

2  .ludge  O'Neal,  in  his  "Beudi  and  Bar  of  S.  C,"  spells  this  name  "Shinner," 
and  says  he  so  finds  it  in  the  court  records.  Those  records  are  not  now  in  ex- 
istence, except  sucli  extracts  as  are  found  in  other  documents.  The  Public  Kec- 
ords  of  S.  C,  copied  in  England,  and  the  Commons  House  and  the  Council 
Journals,  all  manuscript,  uniformly  spell  it  "Skinner." 


38     CONSTITUTIONAL  HISTORY  OF  S.    C. 

iilar  fury  than  all  the  rest  of  the  government  combined. 
He  was  violent  and  implacable  to  carry  out  the  Stamp 
Act  so  far  as  lay  in  the  power  of  a  single  man.  Against 
him,  indignation  was  trebly  strong.  Demonstrations 
and  turbulent  assemblies  about  his  house  became  so 
serious  that  his  family  slept  with  arms  at  their  beds. 

The  stamps  lay  in  Ft.  Johnson  and  none  dared  touch 
them.  The  South  Carolina  newspapers  appeared  as  usual 
on  plain  paper  with  the  words  in  large  letters  across  the 
top,  "No  STAMPED  PAPER  to  be  had. "  Business  was 
congested.  "Though  (their  interest)  is  greatly  affected 
by  it,"  wrote  Lieutenant  Governor  Bull  to  the  Lords 
of  Trade,  "that  inconvenience  is  submitted  to  however 
with  great  perseverance  and  constancy.  The  courts  of 
common  law,  admiralty  and  ecclesiastical  jurisdiction 
are  all  silent;  no  grants  of  land  are  passed;  all  the  ships 
remain  in  ihe  harbor  as  under  an  embargo;  every  trans- 
action requiring  stamps  is  at  an  end."^ 

The  harbor  of  Charleston  was  a  trap  into  which 
ships  entered  but  could  obtain  no  clearance  papers  to 
get  out.  By  February,  1766,  sailors  had  accumulated 
to  the  number  of  fourteen  hundred,  about  one-fourth 
the  normal  population  of  the  town.  In  December, 
1765,  Lieutenant  Governor  Bull  allowed  a  ship  to  clear 
without  stamped  papers  to  take  food  to  the  troops.  The 
people  seized  on  this,  and  demanded  so  tumultuously  the 
same  privilege  for  every  ship  that  violence  was  immi- 
nent. The  first  sheep  had  jumped,  and  all  must  follow. 
The  forbearing  Lieutenant-Governor,  loyal  Tory  though 
he  was,  conceded  that  captains  might  leave  without  for- 
mal  clearance  papers,  but  with  a    "permit,"   for  which 

i  Bull  to  the  Board  of  Trade,  Pub.  Kec.  S.  C.,  MS.,  XXX.,  299. 


THE  STAMP  ACT.  39 

they  paid  the  same  amount  that  stamps  on  clearance 
papers  would  have  cost.' 

Dammed  up  popular  feeling  is  like  dammed  up 
waters  ;  an  outlet  may  relieve  the  pressure,  or  it 
may  be  but  an  opening  for  tearing  every  obstacle  to 
destruction.  The  latter  was  now  the  case.  Lawyers, 
merchants  and  populace  determined  that.  Skinner 
and  the  Parliament  to  the  contrary  notwithstanding, 
the  courts  must  act.  Chief  Justice  Skinner  had 
on  November  13,  1765,  declared  that  no  business 
could  be  done  without  stamps,  and  therefore  adjourned 
court  to  March  3,  1766.  The  gentlemen  of  the 
bar  waited  upon  his  Honor  and  desired  to  present  a  pe- 
tition praying  that  business  might  be  conducted  with 
ordinary  unstamped  paper.  This  petition  was,  perhaps, 
one  degree  bolder  in  its  assertion  of  American  liberty 
than  any  other  utterance  in  South  Carolina.  The  law- 
yers now,  as  on  many  noteworthy  occasions  in  the  his- 
tory of  England  and  America,  vindicated  their  title  to  a 
place  among  the  foremost  leaders  and  boldest  cham- 
pions of  constitutional  liberty.  We  "have  ever 
thought,"  they  say,  "the  principal  excellency  of  the 
British  constitution  consists  in  the  subject's  not  being 
bound  by  any  law  to  which  he  himself  doth  not  con- 
sent by  his  representative. "  We  claim  our  rights,  they 
continue,  under  "Magna  Charta,  the  Petition  of  Right, 
etc.,  ...  which  were  made  of  force  here 

by  Act  of  our  Assembly.  .  .  .  We  cannot 

think  ourselves  bound  by  the  Stamp  Act,  which  annihil- 
ates our  natural  as  well  as  constitutional  rights.  "- 

But  learning  that  there  was  no  hope  of  the  judge's 

1  Bull  to  the  ministry,  Feb.  6,  1766;  Pub.  Rec.  S.  ('.,  MS.,  XXXI,  23-25. 

2  Pub.  Rec.  S.  C,  MS.,  XXXI.,  225. 


40     CONSTITUTIONAL  HISTORY  OF  S.   C. 

granting  their  petition,  they  hit  upon  a  strategy.  In 
1765  the  bench  of  common  pleas  and  general  sessions  in 
South  Carolina  consisted  practically  of  Chief  Justice 
Charles  Skinner.  Four  assistant  judges  were  allowed, 
but  only  one  was  in  commission,  Robert  Pringle,  who 
scarcely  ever  appeared  in  court.  Two,  four  and  five 
days  respectively  before  the  3d  of  March,  1766,  the 
appointment  was  secured  from  the  Lieutenant  Governor 
of  three  assistant  judges.  These  were  sworn  in  secretly, 
without  the  knowledge  of  Judge  Skinner.  When,  on  the 
morning  of  the  3d  of  March,  the  Chief  Justice  walked 
into  the  court  with  his  opinion  snugly  prepared,  like  a 
loaded  bombshell  that  would  shatter  the  last  charge  of 
the  enemy,  he  was  astonished  to  see  Messrs.  Rawlins 
Lowndes,  Daniel  Doyley,  Benjamin  Smith  and  Robert 
Pringle  take  their  seats  beside  him.  "  I  knew  how  it 
would  go  with  me,"  he  says.  From  that  moment  the 
assistants  became  the  digits  and  the  chief  justice  the  ci- 
pher, adding  importance  to  the  whole,  doubtless,  but 
individually  having  no  significance  whatever. 

Mr.  Bee,  attorney  for  the  plaintiff  in  Jordan  vs. 
Law,  moved  for  judgment  by  default,  as  the  defendant 
had  not  appeared.  Questions  arising,  a  division  of  the 
bench  was  observed  in  the  uniform  proportion  of  one  to 
four,  Mr.  Chief  Justice  in  the  minority  maintaining  a 
lonesome  isolation.  All  the  leading  lawyers  spoke  in 
favor  of  proceeding  without  stamped  paper.  A  petition 
from  almost  one  hundred  Charleston  merchants  urged 
earnestly  the  same  prayer,  as  their  prosperity  was 
being  ruined. 

The  court  reserved  its  opinion  and  adjurned  to 
April  I.  On  that  day  the  decision  was  rendered.  The 
court    decided   that,   since  it  was   against  Magna  Charta 


THE  STAMP  ACT.  41 

to  deny  or  delay  justice,  as  it  was  impossible  to  obtain 
stamps,  business  should  proceed  on  plain  paper  despite 
the  Act  of  Parliament.  The  clerk  was  therefore  ordered 
to  issue  judgment.  But  this  official  refused,  and  drew 
down  upon  himself  immense  judicial  thunders  in  a  peti- 
tion for  removal,  and'  a  lightning  stroke  of  a  fine  of 
^100  proclamation  money.  He  feared  to  violate  an  Act 
of  Parliament  that  launched  special  penalties  against 
clerks  of  court  in  particular  who  should  dare  to  disobey 
its  provisions.  But  the  Lieutenant  Governor  declined  to 
suspend  Mr.  Campbell,  and  Majesty  graciously  remitted 
his  fine. 

As  Campbell  refused  to  issue  papers,  Mr.  William 
Mason  was  appointed  by  the  court  as  clerk  pro  tonpore. 
He  feared  not  the  King  and  Parliament. 

Chief  Justice  Skinner  read  a  contrary  opinion  and 
handed  it  to  the  clerk  to  be  entered  in  the  records  of  the 
court  ;  but  the  assistant  justices  refused  to  allow  it  to 
be  recorded.' 

There  iire  two  decisions  during  this  period  that  have 
an  important  bearing  on  the  function  of  the  courts  to 
judge  Acts  of  the  legislature  by  a  supreme  written  con- 
stitution. One  is  the  opinion  rendered  by  the  attorney 
general  of  England,  William  de  Grey,  in  the  ^10.500 
matter,  regarding  the  right  of  the  Commons  House  of 
Assembly  by  its  sole  vote  to  appropriate  money  ;  the 
other  is  the  judgment  of  the  common  pleas  court  of 
South  Carolina  on  the  Stamp  Act.  The  former  will 
come  up  in  its  place.  Let  us  see  now  how  these  South 
Carolina  judges  came  very  near  formally  annulling  an 
Act  of  Parliament. 

Chief    Justice  Skinner    held    that  the    Court  had  no 

1  Pub.  Rec.  S.  C,  MS.,  XXXI.,  106,  144 ;  Council  Jour..  MS.,  XXXII.,  739-50. 


42     CONSTITUTIONAL  HISTORY  OF  S.    C. 

power  to  question  the  authority  of  an  Act  of  Parliament, 
and  that  the  plea  of  impossibility  to  get  stamps  was  spe- 
cious, since  it  was  wholly  impossible  simply  by  the  un- 
lawful demonstrations  of  the  people;  it  was  a  principle 
of  law,  he  said,  that  no  man  should  derive  benefit  from 
his  own  offense.^ 

The  assistant  judges  considered  that  certain  parts  of 
Skinner's  opinion  implied  reflections  upon  them  ;  they 
therefore  at  the  next  sitting  of  the  court.  May  13,  deliv- 
ered through  Mr.  Justice  Lowndes  a  long  argument  in 
defence  of  their  decision.  There  will  be  observed  as  the 
groundwork  of  this  paper  an  ingenious  misapplication  of 
a  principle  of  judicial  interpretation  of  the  common  law 
courts  of  England — i.  e.  the  principle  which  Otis  sought 
to  warp  and  extend  in  his  argument  against  writs  of 
assistance,  that  an  act  of  Parliament  which  is  in  the  na- 
ture of  the  case  unreasonable  or  impossible  of  applica- 
tion does  not  bind  the  courts. 

Judge  Lowndes  maintained  that  since  the  stamp 
distributor  had  forsaken  his  office,  it  was  impossible  to 
obtain  stamps.  But  the  law  neither  requires  impossibil- 
ities, nor  seeks  to  punish  the  innocent  by  closing  courts 
and  other  public  offtces  for  the  dereliction  of  an  official. 
Moreover,  the  object  of  the  Act  was  to  raise  a  revenue, 
and  not  to  stop  courts.  To  do  the  latter  because  of  the 
impossibility  of  obtaining  stamps  would  in  no  sense  be 
carrying  out  the  intention  of  the  Act. 

The  court  went  on  to  show  that  there  are  many  in- 
stances in  which  the  operation  of  a  law  might  be  sus- 
pended ;  e.  g.,  by  the  ist  Edward  II.,  breaking  from 
prison  is  a  felony  ;  but  if  the  prison  be  on  fire,  it  is  no 
felony  for  the  prisoners  to  break  out.      If  a  tailor,    e.  g., 

1  Pub.  Rec.  S,  C,  MS.,  XXX.,  54,  109 ;  Council  Jour.,  MS.,  XXXII.,  745. 


THE  STAMP  ACT.  43 

is  ordered  to  make  a  coat,  he  rests  under  no  obligation 
to  make  it  until  he  has  been  furnished  with  the  cloth. 
So  this  court  is  under  no  obligation  to  use  the  stamps  so 
long  as  the  proper  official  refuses  to  furnish  them.  Mr. 
Chief  Justice  maintains  that  it  is  no  "act  of  God"  that 
makes  the  obtaining  of  stamps  impossible.  It  certainly 
is  an  act  of  God  that  all  America  is  united  in  its  deter- 
mination not  to  pay  the  stamp  tax! 

All  the  business  of  the  court  was  now  carried  on  by 
the  assistant  judges,  and  to  them  went  all  the  fees. 
Skinner  writes  that  he  was  reduced  to  a  French  half 
crown  and  eighteen  pence  English  silver.  He  bought 
the  necessaries  of  life  on  credit.  Every  man  to  whom 
he  owed  a  bill  seemed  to  make  a  run  upon  him. 

On  May  3,  1766,  unofficial  information  arrived  that 
the  Stamp  Act  was  repealed.  Popular  demonstrations 
were  renewed,  now  not  of  sorrow,  but  of  joy.  On  May 
5,  two  days  after  the  news,  "the  mob,"  says  Skinner, 
declared  that  they  would  insult  any  house  not  illuminated 
that  night  in  their  grand  demonstration.  Skinner  was 
alarmed.  His  house  was  illuminated  as  a  matter  of 
necessary  precaution,  and  his  only  discomfort  was  that 
"he  was  saluted  between  the  hours  of  nine  and  ten 
o'clock  with  cheers  and  huzzas  and  damns." 

All  the  other  King's  servants,  glad  of  an  excuse, 
seized  upon  the  news  of  May  3d  and  opened  their  offices 
of  admiralty,  chancery,  etc.  But  not  so  Skinner.  He 
had  only  contempt  for  those  who  sought  such  loopholes 
to  escape  the  popular  fury  and  yet  not  offend  the  King. 

On  July  I,  1766,  Skinner  announced  in  court  that 
he  had  received  such  information  as  satisfied  him  of  the 
repeal  of  the  Stamp  Act,  and  that  he  was  ready  to  pro- 
ceed to  business.      The  assistant  judges  refused  to   allow 


44     CONSTITUTIONAL  HISTORY  OF  S.   C. 

his  paper  to  be  recorded.  ^  Similarly  the  Chief  Justice's 
order  rescinding  his  order  of  November  1 3  closing  the 
court  was  denied  entry  upon  the  book,  since  it  would 
have  admitted  the  validity  of  the  original  order.  ^ 

Two  of  the  King's  servants  requiring  a  word  of  com- 
ment are  Chief  Justice  Skinner  and  Lieutenant  Governor 
Bull.  The  Chief  Justice,  deprived  of  his  income,  the 
most  hated  man  in  the  province,  and  his  personal  safety 
threatened,  was  yet  perfectly  unyielding  in  what  he  con- 
ceived his  duty.  Violent  and  dictatorial  though  he  was, 
yet  in  this  matter  loyalty  to  his  master  and  determina- 
tion to  preserve  the  British  constitution  as  he  understood 
it  controlled  his  acts.  He  is  a  type  of  the  Englishman 
sent  over  to  maintain  the  royal  prerogative.'^ 

To  judge  of  the  position  of  Lieutenant  Governor 
Bull  is  less  easy.  Skinner  was  an  Englishman  and  acted 
dogmatically  as  an  Englishman  throughout.  Bull's  posi- 
tion was  one  of  weightier  responsibility.  Momentous 
consequences  depended  upon  whether  he  conducted  him- 
self with  fanaticism  or  with  prudence.  Besides,  he  was 
a  native  of  South  Carolina.  We  must  consider  how  far 
his  official  duty  to  the  King  laid  him  under  uncompro- 
misable  moral  obligation  to  do  everything  in  his  power  to 
secure  the  execution  of  the  Stamp  Act;  how  far  wise  com- 
promise could  go  without  becoming  unfaithfulness  to  his 
master ;  how  far  sympathy  with  his  neighbors  might 
justly  influence  him  ;  and  how  far  he  might  look  with 
complaisance  upon  the  overthrow  of  a  law  unwise   and 

1  Pub.  Rec.  S.  C,  MS.,  XXXI.,  171-(i. 

2  lb.,  256. 

3  On  the  address  of  the  Commons  House  of  Assembly,  Governor  Lord  Mon- 
tagu, with  the  advice  of  the  (Council,  suspended  Hklnner  in  1768,  for  ignorance 
of  the  law  and  arbitrary  conduct.  He  died  while  final  investigation  was  pend- 
ing. (Com.  .Tour.  S.  C,  MS.,  XXXVII.,  pt.  II.,  35;  Pub.  Rec.  S.  C,  MS., 
XXXII.,  7.) 


THE  STAMP  ACT.  45 

bad  in  every  particular,  violating  his  own  rights  as  a  cit- 
izen and  as  a  man  and  those  of  his  fellow-countrymen. 
He  saved  the  stamps  from  destruction  and  conformed  in 
his  own  duties  to  the  law.  He  refused  to  suspend  Uugal 
Campbell.  But  he  appointed  the  three  judges  who  he 
doubtless  knew  were  enemies  to  the  Act,  and  he  furnished 
the  official  certification  on  which  they  based  their  decis- 
ion, simply  that  "there  were  no  stamps  to  be  had."  He 
failed  to  do  all  he  could  have  done  as  royal  Lieutenant- 
Governor  to  carry  out  the  law.  Tory  though  he  was  in 
the  Revolution,  yet  in  1766  he  gave  a  great  foothold  to 
the  colonists  in  opposing  the  Stamp  Act.  All  his  utter- 
ances were  characterized  by  the  greatest  prudence,  his 
acts  sometimes  by  firmness  and  sometimes  by  concilia- 
tion. Had  some  violent  Englishman  been  at  the  helm, 
the  royal  government  would  have  been  steered  much  less 
safely  through  the  storm. 

The  people  of  South  Carolina  yielded  not  one  jot  or 
tittle  in  the  contest,  unless  allowing  ships  to  pay  for 
"permits"  be  so  considered.  Says  Lieutenant  Governor 
Bull,  they  considered  that  they  were  not  only  resisting  a 
burdensome  tax,  but  were  contesting  for  a  principle  for 
the  future.^  They  blockaded  and  practically  destroyed 
the  stamps  ;  they  captured  the  courts  and  annihilated 
there  the  authority  of  the  crown,  and  they  uttered  a  bill 
of  rights  which,  with  those  of  sister  colonies,  formed  the 
prelude  to  the  Declaration  of  Independence. 

As  a  mark  of  their  gratitude  to  the  great  English 
champion  of  American  liberty,  the  Commons  House  of 
Assembly  in  May,  1766,  voted  i^5,ooo  sterling  for  a  mar- 
ble statue  of  William  Pitt  for  his  exertions  for  the  repeal. "-^ 

1  Pub.  Rec.  S.  C,  MS.,  XXXI.,  50. 

2  Com.  Jour.,  S.  C,  MS.,  XXXVII.,  pt.  II.,  121,  171,  198,  209. 


46     CONSTITUTIONAL  HISTORY  OF  S.    C. 

This  togated  figure  still  stands — now  in  Washington 
Square — less  its  right  arm  by  a  British  cannon  in  1780. 
The  gun  burst  ;  tradition  says  with  the  monstrous  shot 
that  broke  the  arm  of  Pitt. 

I  have  gone  beyond  the  strict  requirements  of  con- 
stitutional history  in  treating  the  Stamp  Act  ;  but  it  has 
been  to  give  a  view  of  how  the  royal  and  democratic  ele- 
ments in  the  government  were  related ;  how  the  people  con- 
trived to  circumvent  what  they  could  not  prevent  ;  how 
they  strove  to  control  and  punish  their  oppressors — in 
short,  to  give  a  picture  of  the  province  of  South  Caro- 
lina in  action. 


CHAPTER  VIII. 


Relations  of  Commons  and  Council 
from  1725  to  1765. 


In  the  opposition  to  the  Stamp  Act,  the  determina- 
tion of  the  people  of  South  CaroHna  to  be  self-governed 
burst  forth  overpoweringly,  in  the  terrorizings  of  the  mob, 
in  the  resolutions  of  the  Commons  House  of  Assembly, 
and  in  the  annihilation  of  the  authority  of  the  crown  in 
the  common  law  courts  by  the  assistant  judges.  But 
the  sentiment  of  home  rule  was  no  new  one.  The 
Stamp  Act  was  two  things:  first,  it  was  a  very  import- 
ant incident  in  a  long  course  of  development;  and 
second,  it  did  not  leave  the  development  where  it  found 
it,  but  gave  it  an  immense  advance.  Oppression  came 
just  at  the  stage  of  the  colony's  history  when  oppres- 
sion could  least  be  brooked. 

The  legislature  of  South  Carolina  consisted  of  two 
elements  distributed  among  three  parties:  first,  the  pure- 
ly home  rule  element,  in  the  Commons  House  of  Assem- 
bly; second,  the  purely  royal  element,  in  the  King-ap- 
pointed Governor;  and  third,  a  compromise  between 
these  two  elements  in  a  body  to  whom  the  interests  of 
the  province  would  appeal  as  natives  and  the  interests 
of  the  King  as  champions  of  the  prerogative — the 
Council. 


48     CONSTITUTIONAL  HISTORY  OF  S.    C. 

There  was  a  slow  revolution  going  on  in  the  gov- 
ment  of  South  Carolina;  a  revolution  purely  domestic 
in  its  field  of  operation,  though  reaching  across  the  sea 
in  its  relationships;  different  from  the  American  Revo- 
lution, but  born  of  the  same  spirit;  a  slow  process  of 
change,  which,  but  for  the  greater  and  more  startling 
one,  would  have  completed  itself  in  the  same  theatre  in 
which  it  began. 

By  the  formal  constitution  of  the  province  of  South 
Carolina,  that  is  the  royal  instructions  to  Governors, 
there  was  but  one  way  in  which  money  could  be  paid 
out  of  the  treasury — by  the  vote  of  both  Commons  and 
Council  and  the  concurrence  of  the  Governor.  In  deal- 
ing with  money  bills,  as  in  all  other  particulars,  the  two 
bodies  were  given  exactly  similar  privileges.  The  Coun- 
cil, however,  never  went  so  far  as  to  originate  a  money 
bill.  For  some  time  this  plan  went  on  smoothly.  In  the 
early  years  of  the  royal  government  the  Council  was  com- 
posed almost  or  quite  entirely  of  native  South  Carolin- 
ians, and  seats  were  sought  as  an  honor  by  the  best  citi- 
zens.' There  appeared  no  great  reason  to  apprehend 
danger  to  the  liberties  of  the  people  from  the  upper 
house,  as  it  was  then  called,  made  up,  as  it  was,  of  the 
most  respected  men  in  the  province.  Those  were  the 
days  when  Thomas  Broughton  might  be  indifferently 
Speaker  of  the  Commons  House  of  Assembly  or  a  mem- 
ber of  His  Majesty's  Council.  The  two  houses  of  the 
Legislature — for  at  that  time  they  were  properly  two 
houses — audited  the  public  accounts  by  joint  commit- 
tee, and  made  the  estimates  and  framed  the  tax  bill  in 
perfect  equality.  Either  offered  amendments  as  a  mat- 
ter of  course.     The  terms  Upper  and  Lower  House  were 

1  Pub.  Rec.  S.  C,  MS.,  XIV.,  148 ;  XXII.,  160 ;  XXXVlf,  162,  etc. 


RELATIONS  OF  COM.   AND   COUNCIL.      49 

constantly  used  by  both  Houses  in  speaking  of  them- 
selves and  of  each  other.  ^ 

But  even  so  early  as  1725  the  Commons  House  of 
Assembly  began  to  measure  it  privileges  by  those  of  the 
British  House  of  Commons.  In  that  year  the  right  of 
the  Council  to  amend  or  change  money  bills  was  totally 
denied  by  the  other  branch  of  the  legislature.  Surely, 
they  say,  the  King  did  not  intend  the  Council  to  have 
more  power  than  the  English  House  of  Peers.  The 
dispute  waxed  high  and  was  ended  by  the  aggressive 
Commons  being    knocked    into   limbo  by  a  dissolution. - 

In  1735  occurred  the  next  clash.  Suggestions,  mes- 
sages, recommendations,  and  formal  amendments  to  the 
tax  bill  continued  up  to  the  very  moment  of  collision.'^ 
Who  could  cast  a  stone  at  a  patriotic  "Upper  House" 
that  sent  down  a  warm  recommendation  to  reimburse  a 
South  Carolinian  who  had  spent  his  substance  in  Lon- 
don frustrating  the  designs  of  the  greedy  Lords  Pro- 
prietors to  regain  possession  of  their  lost  Carolina  .''  The 
memories  of    17 19-1729  still  drew  the  Houses  together. 

The  shock  was  startling.  In  the  days  of  February 
and  March,  1735,  are  strewn  over  the  pages  of  the  Com- 

1  In  tlie  earlier  years  of  ttie  royal  government  the  bill  to  raise  the  funds  to 
meet  the  expenses  was  passed  at  the  beginning  of  the  year  whose  expenses 
were  being  provided  for.  Each  House  appointed  members  of  a  joint  commit- 
tee, who  estimated  what  amounts  would  be  necessary.  The  Commons  framed 
the  tax  bill  in  blank,  and  filled  out  the  amounts  after  the  report  of  the  Joint 
committee. 

At  a  later  date,  it  became  customai\y  to  frame  the  tax  and  supply  bill  at 
the  end  of  the  year  whose  expenses  were  being  provided  for.  This  nietlnHi  at- 
tained more  accurate  results,  since  the  bill  was  Iramed,  not  to  meet  what  it  was 
estimated  the  expenses  would  be,  but  what  it  was  discovered  they  had  been. 
The  joint  committee  now  inspected  all  claims  against  tlie  government  for  the 
past  year  for  salaries,  administration,  extraordinary  expenses,  etc.,  and  au- 
dited these  accounts.  When  the  gross  amount  was  arrived  at,  the  blanks  in 
the  tax  bill  were  filled. 

The  system  of  providing  revenue  for  the  past,  instead  of  for  the  coming 
year,  continued  to  the  Revolution. 

2  Com.  Jour.  iS.  ('.,  MS.,  Vll.,  320,  333,  etc. ;  Pub.  Rec.  S.  C,  MS.,  XL.  301. 

3  E.  g..  Com.  Jour.  S.  ('.,  1734,  XL,  17,  64,  67,  70,  107,  lOH,  etc. ;  Council  Jour.  S. 
C,  MS.,  v.,  534,  543,  640,  etc. 


50     CONSTITUTIONAL  HISTORY  OF  S.    C. 

mons  Journal  grumblings  that  the  Upper  House  was 
keeping  the  tax  bill  altogether  too  long.  The  Council 
grumbled  back.  Evidently  there  was  to  be  trouble.  It 
so  happened  that  Chief  Justice  Robert  Wright  had  in- 
curred the  enmity  of  the  Commons  House  of  Assembly, 
and  for  three  years  they  had  withheld  his  pay.  Now 
this  Robert  Wright  was  a  member  of  the  Council.'  In 
the  tax  bill  of  1735  the  Commons  also  provided  that 
their  clerk  should  receive  twice  the  amount  allowed  the 
clerk  of  the  Upper  House.  When  the  tax  bill  went  to 
the  Council,  the  gross  sum  was  ^42,992,  13s.,  6d. ; 
when  it  was  returned,  the  figures  read,  ^45,092,  13s., 
6d.^  The  Council  did  not  relish  the  discrimination 
against  their  own  clerk,  and  they  desired  to  force  the 
Commons  to  pay  Wright  his  salary. 

The  Council  had  offended  in  two  particulars:  they  had 
added  £2, 100  to  the  people's  taxes,  and  they  had  at- 
tempted to  wrest  from  the  hands  of  the  Commons  their 
only  weapon  against  obnoxious  royal  officers.  The 
amendment  was  unanimously  rejected  {iieviinc  contra- 
dicente).  On  the  next  day,  March  28,  1735,  the  House 
resolved  in  similar  ncmine  coiitradicente  style,  "That 
His  Majesty's  subjects  in  this  province  are  entitled  to  all 
the  liberties  and  privileges  of  Englishmen  {;vidc  Charter 
to  the  Lords  Proprietors;  vide  Statute  31  Ed.  I.,  Chap. 
I  and  4);  (and)  that  the  Commons  House  of  Assembly 
in  South  Carolina,  by  the  laws  of  England  and  South 
Carolina,  and  ancient  usage  and  custom,  have  all  the 
rights  and  privileges  pertaining  to  money  bills  that  are 
enjoyed  by  the  British  House  of  Commons";  and 
further,  that  after  the  tax  bill  is  closed,  no  addition  can 

1  I'ub.  Hec.  H.  C,  MS.,  XIV.,  28. 

2  Com.  Jour.  S.  C,  MS.,  IX.,  HO,  126,  178,  188. 


RELATIONS  OF  COM.   AND  COUNCIL.     51 

be  made  thereto  "but  by  and  in  the  Commons  House  of 
Assembly."' 

The  right  to  all  the  liberties  of  the  inhabitants  of 
England,  and,  by  necessary  implication,  the  exercise  of 
their  parliamentary  practices,  and  not  the  ro}al  instruc- 
tions alone  or  completely,  the  Commons  considered  their 
constitution.  Note,  however,  that  in  the  earlier  years 
of  the  struggle,  and  sometimes  even  towards  the  end, 
they  plead  the  intentions  of  the  King  in  justification  of 
their  claims.  This  was  a  very  constitutional  people; 
they  professed  to  abhor  revolution  while  constantly  work- 
ing it.  At  last  they  were  forced  to  desert  the  plea  of 
the  King's  intentions,  as  His  Majesty  declared  most  em- 
phatically that  he  was  against  them.  Whether  the  Gov- 
ernor and  Council  cited  the  royal  instructions,  or  the 
Commons  the  charter  and  the  statute  extending  to  the 
colonies  all  the  liberties  of  Englishmen,  it  was  equally 
the  archetype  of  the  American  system  of  a  supreme 
written  Constitution  by  which  the  acts  of  the  various 
branches  of  government  are  to  be  tested. 

At  this  early  stage  of  the  royal  government,  with  the 
title  of  the  Proprietors  only  six  years  dead,  the  movement 
for  absolute  home  rule  was  thus  far  advanced.  Evi- 
dently the  colonists  did  not  exchange  the  weaker  over- 
lordship  for  the  stronger  in  order  that  their  liberties 
might  be  curtailed. 

In  the  battle  of  1725  the  Commons  gained  nothing, 
except  the  moral  energy  for  the  future  that  came  from 

1  Lieutenant-Governor  Hull,  in  a  very  lucid  sketch  of  the  relations  of  tlie 
Commons  and  Council,  written  in  1770  at  the  direction  ol"  the  pjiri  ol"  Hills- 
borough, makes  a  mistake  of  a  year  and  a  half  in  the  date  of  this  clash,  and 
also  is  in  error  in  saying  that  it  was  the  first.  Rut  his  sketch  is  very  excellent, 
altogether  invaluable.  I  am  largely  indebted  to  it.  It  is  much  superior  to 
that  of  the  attorney  genei-al  of  England,  William  de  Gi-ey,  written  about  the 
same  time  for  the  same  purpose. 


52     CONSTITUTIONAL  HISTORY  OF  S.    C. 

asserting  their  rights.  The  battle  of  1735  was  of  real 
strategic  importance  in  the  long  campaign.  After  it  the 
Commons  moved  their  banners  forward  and  camped  one 
march  nearer  the  citadel  of  the  enemy.  From  that 
time  the  public  accounts,  which  had  before  been  audited 
by  a  joint  committee  of  the  two  Houses,  were  audited 
by  the  Commons  alone. 

The  determination  of  the  Commons  House  to  estab- 
lish for  themselves  the  privileges  of  the  British  House 
of  Commons  is  emphasized  by  the  trifling  incidents  that 
could  occasion  a  conflict.  In  1739  the  mere  omission  of 
the  word  "honorable"  before  the  name  of  Councillor 
Hammerton  and  its  use  before  that  of  Mr.  Pinckney, 
Speaker  of  the  Commons,  precipitated  a  general  contest 
on  rights  and  privileges.  The  conflict  was  fiercer  than 
ever  before.  The  great  strategic  position  was  money 
bills;  the  Commons  claimed  sole  control,  and  the  Coun- 
cil asserted  their  right  to  amend.  The  privileges  of  the 
British  House  of  Commons  was  the  slogan  of  the  Lower 
House;  the  royal  instructions  that  of  the  Upper.  The 
sun  of  their  official  life  set,  and  went  down  upon  their 
wrath;  the  Assembly's  triennial  term  expired  with  no 
tax  bill  passed,  each  House  holding  its  pretentions  high. 
The  newly  elected  Assembly  took  up  the  battle  without 
a  lull,  and  flew  into  resolutions  on  the  undoubted  rights 
of  Englishmen.  Only  the  thunder  clouds  of  real  war 
gave  surcease  to  the  war  of  words;  threatened  hostili- 
ties with  Spain  forced  the  Assembly  to  provide  a  public 
revenue  against  the  galleons  that  would  not  fail  to  creep 
from  the  shadows  of  the  Morro  to  harry  the  coast  of 
Carolina. 

With  an  express  reservation  of  their  respective  priv- 
ileges, which  were  not  to   be  considered   as  in  any  wise 


RELATIONS  OF  COM.   AND  COUNCIL.      53 

committed,  the  two  Houses  agreed  upon  a  temporary 
compromise.  The  Council  was  not  to  amend  money 
bills,  but  might  recommend  in  a  message  any  necessary 
addition  or  change.  If  the  Lower  House  approved, 
they  threw  out  the  original  bill  altogether,  after  a  simi- 
lar occasional  practice  in  England,  and  brought  in  anew 
bill  embodying  the  suggestions.  The  Commons  saved 
the  principle  and  stationed  their  outposts  one  furlong 
nearer  the  entrenchments  of  prerogative.'  When  the 
accomplishment  of  particular  objects  required,  the  Com- 
mons denied  to  the  Council  even  the  privilege  of  sugges- 
tion. For  the  sake  of  peace,  the  Council  acquiesced, 
and  the  Commons,  says  Bull,  "thus  coming  off  victo- 
rious, soon  felt  their  strength  to  consist  in  holding  the 
purse  strings  of  the  people." 

In  1756  the  contest  was  again  on,  and  the  Commons 
gained  most  important  victories  on  two  points.  The 
diplomatic  corps  of  the  province  of  South  Carolina  con- 
sisted of  but  one  ambassador,  and  he  at  the  honorable 
court  of  St.  James.  This  was  the  regular  "agent,"  who 
was  kept  in  England  to  attend  to  the  general  interests  of 
the  colony.  Before  the  days  when  "the  undoubted 
rights  of  Englishmen"  began  to  be  doubted^  and  while 
the  Council  was  still  a  passable  legislative  body,  the 
agent  was  appointed  by  both  Houses,  and  the  business 
with  him  was  conducted  by  a  joint  "committee  of  cor- 
respondence." In  1749  Charles  Crokat  was  thus  ap- 
pointed. In  1756  he  wrote  that  his  private  affairs  for- 
bade his  longer  attending  to  the  colony's  business,  and 
begged  to  be  relieved.  Mr.  Charles  Pinckney,  wealthy, 
able,  upright,  was  then  in  England,  and  to  him  the  eyes 

1  Com.  Jour.  S.  C,  xMS.,  IX.,  711 ;  Pub.  Uec.  S.  t'.,  MS.,  XXXII.,  3i!t5. 


54     CONSTITUTIONAL  HISTORY  OF  S.    C. 

of  the  Council  turned.  But  Mr.  Pinckney,  sometime 
chief  justice  of  South  Carolina  by  gracious  appointment 
of  Majesty,  was  himself  a  member  of  the  Council.  The 
Commons  preferred  Mr.  Crokat,  and  to  enable  him  to 
continue  his  services,  inserted  in  the  tax  bill  an  item  of 
^1,400  currency  for  his  salary.  The  Council  asserted  its 
old  right  of  amendment,  and  refused  to  pass  the  tax  bill 
with  the  item  for  Crokat.  Time  after  time  the  bill  was 
rejected;  neither  side  would  yield.  The  Commons  pub- 
lished the  whole  affair,  together  with  a  long  vindication 
of  their  rights,  and  an  arraignment  of  the  other  House. 
Great  popular  resentment  was  excited  against  the  oppos- 
ers  of  the  people's  representatives.  The  Council,  though 
responsible  only  to  the  King,  yet  feeling  the  stress  of 
public  opinion,  issued  a  long  rejoinder.  Three  causes 
conspired  to  the  victory  of  the  Commons:  popular  ac- 
clamation, the  arrival  of  a  new  Governor,  and  the  be- 
ginning of  the  Seven  Years'  War.  To  give  the  new  Gov- 
.  ernor  a  smooth  start,  and  as  the  royal  part  in  the  gov- 
ernment was  anxious  to  keep  the  Commons  in  good 
humor  for  the  King's  requisitions  for  the  war,  says  Lieu- 
tenant-Governor Bull,  the  Council  yielded  and  passed 
the  tax  billfes  sent  up  by  the  Commons,  thus  surrending 
their  right  to  strike  out  the  ;^i,400.^ 

The  estrangement  between  the  two  Houses  now  be- 
came almost  complete.  From  about  this  time  friendly 
conferences  and  joint  committees  totally  ceased;  Lieu- 
tenant-Governor Bull  says  in  1770  that  he  thinks  that 
there  has  not  been  one  in  ten  or  fifteen  years. - 

The  change  regarding  the  agent  and  the  conmiittee  of 
correspondence    was    also    of    great    importance.       The 

1  Pub.  Rec.  S.  C  MS.,  XXXIl.,  328. 

2  Pub.  Kec.  .S.  U.,  MS.,  XXXII.,  372. 


RELATIONS  OF  COM.   AND  COUNCIL.      55 

Council  would  none  of  Mr.  Crokat,  and  the  Commons 
continued  to  correspond  with  him  alone.  The  stubborn- 
ness of  the  Council  lost  them  more  than  they  realized. 
The  monopoly  of  the  committee  of  correspondence  re- 
mained with  the  Commons.  When  in  the  years  pre- 
ceding the  Revolution  the  colonies  began  their  commun- 
ications, which  ended  in  the  American  Union,  these  com- 
munications were  naturally  referred  to  the  standing  com- 
mittee of  correspondence,  which  had  by  a  kind  of  acci- 
dent fallen  into  the  hands  of  the  Commons.  At  first 
a  part  of  it  (nine,  e.  g. ,  on  one  occasion)  was  delegated 
to  write  such  sporadic  letters  to  sister  colonies  as  were 
necessary.  Afterwards  the  whole  committee,  as  a  ready 
prepared  instrument,  became  one  of  the  organs  of  rev- 
olution. The  House  directed  it  to  communicate  to  all  the 
other  colonies  every  particular  grievance  against  the 
Governor  and  Council,  as  well  as  South  Carolina's  sen- 
timents on  general  American  liberties,  and  it  was  ordered 
to  continue  to  act  after  the  House  had  adjourned.^  This 
regular  committee  of  correspondence  continued  this  un- 
til superseded  by  the  extralegal  organizations  of  revolu- 
tion of   1774-76. 

In  1754  the  designation  of  the  two  Houses  changed. 
Until  then  the  Commons  called  the  Council  the  Upper 
House  and  themselves  the  Lower,  or  said  Commons  and 
Council  indifferently.  The  Council  and  everybody  else 
did  the  same  thing.  But  after  1754  the  use  of  these 
terms  is  rare  and  very  dangerous  to  parliamentary  peace. 
As  above  pointed  out,  the  Council  was  becoming  more 
distinctively  an  administrative  board  than  a  legislative 
house.      This  was  largely  due  to  the  great    increase  of 

1  Com.  Jour.  S.  C,  MS.,  XXXIX.,  pt.  II.,  27,  U3. 


56     CONSTITUTIONAL  HISTORY  OF  S.   C. 

wealth  and  population.  It  will  be  remembered  also  that 
the  Council  had  come  to  be  composed  largely  of  Eng- 
lishmen, royal  officeholders  subservient  to  the  King. 
To  be  ruled  by  such  a  body  was  insufferable.  The  ques- 
tion was  no  longer  one  merely  of  parliamentary  priv- 
ileges between  two  houses  of  the  legislature,  but  one  of 
home  rule  versus  being  ruled  by  a  clique  of  placemen, 
the  creatures  of  a  distant  autocrat.  In  the  very  nature 
of  the  situation,  the  struggle  hightened  in  intensity.  The 
following  important  and  altogether  unique  occurrence, 
involving  equally  Governor,  Commons  and  Council,  will 
make  plain  the  state  of  affairs  at  the  period  of  the 
Stamp  Act: 

In  May,  1761,  Thomas  Boone,  an  Englishman,  was 
commissioned  Governor  of  South  Carolina,  In  Decem- 
ber he  arrived.^  Soon  he  refused  to  administer  the 
"state  oaths"  to  a  member-elect  of  Assembly,  because 
he  questioned  whether  the  gentleman  had  been  duly 
elected.  A  high  dispute  raged;  Boone  dissolved  the 
House.  The  Commons  denounced  Boone  to  the  King 
for  presuming  to  infringe  on  their  sole  right  to  judge  of 
elections,  and  published  a  78-page  pamphlet,  which  they 
distributed  in  South  Carolina  and  England.^  The  newly 
elected  House  denounced  Boone's  original  act,  and  also 
his  dissolution  of  their  predecessors,  and  refused  even  to 
furnish  resistance  against  the  Indians,  who  were  taking 
the  war  path,  until  he  had  given  satisfaction.  Boone 
prorogued  them  and,  contrary  to  law,  held  no  Assembly 
for  eight  months.'^ 

1  Pub.   Rec.  S.   C,   MS.,   XXX.,  SOS;    XXIX.,  210;    Com.  Jour.  K.  C,   MS., 
XXXIV.,  270,  271. 

2  Com.  Jour.  S.  C,  MS.,  XXX VI.,  29;  Pub.  Kec.  S.  C,  MS.,   XXX.,  154,  164, 
l(i7. 

3  lb. 


RELATIONS  OF  COM.   AND  COUNCIL.      57 

By  the  advice  of  the  ministry,  the  King  reprimanded 
Boone  very  severely;  but  before  the  Commons  he  was 
hypocritically  endorsed,  and  they  were  told  that  Gover- 
nor Boone  was  right  in  maintaining  the  "royal  preroga- 
tive," and  that  they  had  been  guilty  of  a  violation  of 
duty  to  their  sovereign  with  which  he  was  highly  dis- 
pleased.^ 

After  his  singularly  insolent  words  and  conduct.  Gov- 
ernor Boone  was  "surprised"  to  find  that  the  appropria- 
tion bill  contained  no  item  for  his  salary.  Imniediately 
after  his  arrival  in  December,  1761,  before  he  had  trod- 
den upon  their  privileges,  the  Assembly  had  paid  him 
for  the  few  remaining  days  of  the  year  iJ^86,  6s.  cur- 
rency, about  $61,  the  exact  proportion  of  the  annual 
allowance  of  ^3,500.  Further  than  this,  during  the 
two  and  a  half  years  that  he  remained  in  South  Caro- 
lina, no  shilling  did  he  get.'-  No  royal  Governor  of 
the  province  had  ever  before  been  denied  his  pay. 
In  1764  the  Council  sent  in  a  message  to  the  Commons 
threatening  to  throw  out  the  tax  bill  unless  the  sum  of 
i^7,ooo  for  Governor  Boone's  salary  was  added.  This 
brought  down  the  heaviest  blow  that  the  Council  had 
ever  received.      Said  the  Commons,  in  substance: 

\\^e  would  be  surprised  at  your  effrontery  if  repeated 
offences  had  not  accustomed  us  to  it.  As  for  your  "in- 
structions" from  the  King,  you  certainly  need  instruc- 
tions from  somebody;  in  this  particular  matter,  however, 
we  question  the  reliability  of  your  statement.  We  do  not 
need  you  to  tell  us  that  no  Governor  was  ever  deprived 
of  his  allowance  since  this  became  a  royal  colony;  that 
only  emphasizes  his  demerits;  never  before  has  any  Gov- 

1  Pub.  Kec.  S.  C,  MS.,  XXX.,  172-o. 

2  Com.  Jour.  S.  C,  MS.,  XXXV.,  pt.  I.,  161 ;  Pub.  Rec.S.C,  MS.,  XXX.,  296. 


58     CONSTITUTIONAL  HISTORY  OF  S.   C. 

ernor  been  so  enormous  in  his  "repeated  insults  and 
attacks  upon  the  rights  and  privileges  of  the  people." 
The  money  "is  ?tot  a  salary,  but  a  gratuity  from  the  peo- 
ple, which  they  would  be  stupid  to  bestow  upon  a  Gov- 
ernor who  has  endeavored  to  deprive  them  of  what 
ought  to  be  valued  by  every  Englishman  more  than  life 
itself."  But  that  we  may  give  even  you  your  dues,  we 
must  '  'most  highly  applaud  your  most  profound  sagacity 
in  discovering  the"  virtues  of  a  Governor  whose  "haught- 
iness and  despotism"  South  Carolina  has  never  seen  ex- 
ceeded. We  can  easily  understand  your  his  syco- 
phants' "utmost  .  .  .  suppleness  ...  to 
avoid  that  suspended  rod,  which  the  least  refractoriness 
would  inevitably  bring"  down.  We  do  not  know  how 
much  you  are  being  rewarded  for  this,  you  disinterested 
"volunteers";  but  know  "that  we  will  not  restore  the 

sum  of  ^7,000 NO!  not  even  for  your 

favorite  GOVERNOR!"^ 

Such  were  the  relations  of  the  Commons  and  the 
Council  at  the  period  of  the  Stamp  Act.  The  character 
of  the  Council  had  been  radically  changed.  Our  ne.xt 
chapter  will  see  a  still  more  startling  advance  in  this 
revolution  which  was  going  on  within  the  government  of 
the  province  of  South  Carolina. 

1  Com.  Jour.  S.  C,  MS.,  XXX VI.,  342-6. 

Withholding  Governor  Boone's  salary  was  not  a  measure  of  econ- 
omy to  save  the  money  involved.  After  Boone's  departure,  the  Commons  re- 
solved that  the  withholding  of  the  salary  was  perfectly  right  and  "must  always 
remain  unimpeached ;  .  .  .  but  as  our  truly  Patriotic  Sovereign  has  been 
pleased  to  discountenance  oppression  by  removing  that  arbitrary  and  impe- 
rious Governor  for  daring  to  trample  on  the  people's- liberties,"  we  will,  In 
deference  to  His  Majesty's  request,  and  not  from  any  obligation,  insert  the  lit- 
tle £7,000  in  our  next  budget.  And  as  for  you,  Governor  Lord  Montagu,  we 
will  say,  that  we  cannot  establish  any  regular  salaiy,  as  His  Majesty  urges : 
but  we  have  no  doubt  that  at  the  proper  time  this  House  will  allow  you  what 
has  been  customary  for  the  gentleman  filling  the  position  you  have  come  to 
occupy.    Com.  Jour.  S.  C,  MS.,  XXXVII.,  pt.  II.,  165. 


CHAPTER  IX. 

Appropriation    of   Money    on    the    Sole 
Authority  of  the  Commons. 

Far  reaching  was  the  influence  of  John  Wilkes  of 
Middlesex.  Not  only  did  he  sorely  vex  George  III.  in 
old  England,  but  he  played  a  large  part  in  overthrowing 
the  royal  prerogative  and  the  power  of  His  Majesty's 
Council  in  South  Carolina. 

As  before  remarked,  by  the  formal  constitution  of 
South  Carolina,  i.  e.  the  royal  instructions  to  Gover- 
nors, there  was  but  one  way  of  issuing  money  from  the 
treasury — by  vote  of  the  Commons  and  the  Council 
and  the  concurrence  of  the  Governor.  But  a  fateful 
variation  from  the  strict  letter  of  the  law  was  some- 
times allowed.  Mark  the  small  steps  of  a  progress 
which  when  completed  worked  a  revolution.  To  pass 
an  appropriation  bill  through  three  readings  in  each  of 
two  Houses,  have  it  signed  by  the  Governor,  and  for- 
mally ratified  by  both  Commons  and  Council  was  a 
process  requiring  more  or  less  time.  Therefore  in  great 
emergencies  the  following  quick  method  was  sometimes 
practiced:  a  simple  resolution,  requiring  but  one  voting, 
was  passed  by  Commons  and  Council  and  was  con- 
curred in  by  the  Governor,  the  Commons  at  the  same 
time  resolving  to  replace  the  money  by  the  next  tax  bill. 
It  was  a  kind  of  borrowing  from  the  treasury  in  an 
informal  way  and  repaying  in  the  prescribed  constitu- 
tional form.  We  have  already  observed  how  the  con- 
trol of  the  budget  had  been  gained  by  the  Commons. 


6o     CONSTITUTIONAL  HISTORY  OF  S.    C. 

How  easy,  therefore,  was  the  next  step  of  making 
appropriations  still  more  expeditiously  by  the  Commons 
alone  resolving  that  the  treasurer  should  pay  certain 
sums  on  the  requisition  of  the  Governor,  and  resolving 
also,  as  before,  to  make  provision  in  the  budget.  So 
far  there  was  nothing  to  alarm  or  offend  the  royal  con- 
stituents in  the  government.  But  how  easy  was  one 
more  step,  for  the  Commons  to  order  the  treasurer  to 
advance  certain  sums  to  a  committee  of  themselves, 
resolving,  as  always,  to  make  good  the  amount.  If  the 
money  was  for  the  King's  service  and  time  was  very 
pressing,  His  Majesty's  Council  and  the  royal  Governor 
would  hardly  make  serious  objection  on  the  score  of 
mere  technical  irregularity.  Of  late  years,  says  Lieuten- 
ant-Governor Bull  in  1770,  even  this  method  had  been 
allowed  to  go  unchallenged,  because  of  the  reasonable- 
ness of  the  service  or  the  reluctance  to  raise  one  of 
those  struggles  on  "the  undoubted  rights  of  English- 
men." When  the  Council  had  made  any  objection, 
they  had  always  come  out  the  worse  for  it. 

So  in  1770  there  were  three  methods  of  drawing 
money  from  the  treasury:  first,  by  the  concurrence  of 
the  Commons,  Council  and  Governor;  second,  by  the 
Commons  ordering  the  money  to  be  paid  on  the  requisi- 
tion of  the  Governor;  and  third,  by  the  Commons 
ordering  the  money  to  be  paid  to  anybody  they  should 
designate.'  But  when  the  appropriations  of  the  Com- 
mons reached  the  ;^io,  500  point  currency  and  had 
John  Wilkes  mixed  up  in  it,  it  was  time  to  call  a  halt. 
Majesty  himself  personally  commanded  that  a  halt 
must   be   called.      The    runaway    team    of  a    Commons 

1  Pub.  Rec.  S.  C,  MS.,  XXXII.,  132. 


APPROPRIATION  OF  MONEY,  6i 

House  having  gotten  well  beyond  control,  it  would  evi- 
dently require  an  immense  amount  of  pulling  and  coax- 
ing and  tugging  and  jerking  to  bring  them  back  to  an 
orderly  constitutional  jog  trot,  if  indeed  they  did  not 
utterly  tear  to  pieces  the  antiquated  vehicle. 

How  John  Wilkes,  of  Middlesex,  was  elected  to  the 
British  Parliament,  how  he  was  expelled,  and  how  he 
became  the  black  beast  of  George  HI.  and  the  glorified 
champion  of  the  party  of  liberty,  is  known  to  the  world. 
"Bill  of  Rights  Societies"  were  organized  all  over  Eng- 
land, and  indeed  the  British  empire.  Their  proceed- 
ings, and  everything  else  concerning  John  Wilkes,  fill 
the  South  Carolina  newspapers  in  those  years.  The 
attachment  to  the  cause  of  liberty  as  represented  by 
Wilkes  was  intense  in  South  Carolina.  Societies  in  the 
interest  of  him  and  violated  British  liberty  were  organ- 
ized in  the  province,  and  enthusiasm  went  to  a  hight. 
Take,  e.  g. ,  the  following  advertisement,  which  ap- 
peared   in    the    South    Carolina    Gazette    of  December 

2,    1772: 

Charles  Town,  Nov.  21,  1772. 
THE  FRIENDS  OF  LIBERTY 
Agreeable  to  the  English  Constitution, 
Who  are  members,  and  particularly  the  Stewards, 

OF  CLUB  No.  45. 
The    meeting    of    which  was   adjourned    to  the    Day 
whereon  certain  advice  should  be  received  of  the  intre- 
pid patriot 

JOHN  WILKES,   Esq., 

Being  advanced  to  the  high  dignity  of 

LORD  MAYOR  of  London, 

are  desired  to    meet  at   Mr.    Holliday's  Tavern    at  Six 


62     CONSTITUTIONAL  HISTORY  OF  S.    C. 

o'clock  THIS  EVENING,  to  choose  Stewards,  and 
otherwise  prepare  for  the  Celebration  of  their  sincere 
joy  upon  so  glorious  and  important  an  event. 

"The  Supporters  of  the  Bill  of  Rights"  in  England 
sent  requests  for  aid  to  all  parts  of  America.  On 
December  8,' 1769,  the  Commons  House  of  Assembly 
of  South  Carolina  responded  by  sending  to  England 
;,{^i,500  sterling  of  the  public  money  for  this  cause. ^ 
In  their  Journal  it  reads,  that  the  public  treasurers 
should  pay  to  a  committee  of  members  the  sum  of 
;{^ 1 0,500  currency,  to  be  sent  to  England,  "for  the 
defense  of  British  and  American  Liberty."-  From  the 
Public  Records  we  learn  that  the  money  actually  arrived 
in  England. 

Here  then  was  an  offense  that  smelt  rank  in  the  nos- 
trils of  Majesty.  The  representatives  of  the  people  of 
South  Carolina,  in  the  Commons  House  of  Assembly, 
had  defied  the  concurrent  authority  of  the  Governor 
and  Council,  completely  ignored  them,  and  had  sent 
;^i,500  good  sterling  money  to  England  to  support  the 
cause  of  the  arch  enemy  of  George  III.  The  King  was 
outraged.  He  gave  the  matter  his  personal  attention. 
The  attorney  general  of  England,  William  de  Grey, 
was  ordered  to  investigate  the  constitutional  history  of 
South  Carolina  from  1662  and  report  whether  any 
shadow  of  pretext  existed,  ever  had  existed,  or  by  any 
possibility  could  be  construed  to  exist,  for  the  action  of 
the  Commons.  Lieutenant-Governor  Bull  across  the 
water  was  given  the  same  task.  The  ventilation  of 
this  affair  between  London  and  Charleston  for  the  next 
five  years  fills  hundreds  of  pages  in  the  Public  Records 

1  S.  C.  and  Amer.  Gen.  Gaz.,  Dec.  4-13,  1769. 

2  Com.  Jour.  S.  C,  MS.,  XXXVIII.,  215. 


APPROPRIATION  OF  MONEY.  63 

to  the  overshadowing  of  all 'other  subjects,  until  the 
Revolution  was  fairly  upon  the  empire. 

On  February  13,  1770,  de  Grey  handed  in  his  report. 
It  is  an  admirable  constitutional  sketch,  clear  and  con- 
cise, and,  if  its  premises  are  admitted,  thoroughly  con- 
clusive. He  assumes  the  royal  instructions  to  Gov- 
ernors, which  define  the  branches  of  government  and 
the  functions,  privileges  and  limitations  of  each,  to  be 
the  constitution  of  South  Carolina.  He  cites  these 
instructions  by  sections,  just  as  now  our  supreme  courts 
cite  the  sections  of  the  written  Constitution,  and  decides 
that,  "by  the  Constitution  of  that  Colony,"  no  warrant 
exists  for  the  Commons  House  of  Assembly  to  appro- 
priate money  or  do  any  other  legislative  act  by  their 
sole  authority.  The  Council  had  co-ordinate  powers, 
he  says,  in  amending  and  passing  money  bills.*  The 
significance  of  this  theory  of  colonial  constitutional 
law  will  be  considered  later." 

Lieutenant-Governor  Bull's  paper  is  an  abler  docu- 
ment than  de  Grey's.  It  is  much  more  historical  in 
method.  In  tracing  the  actual  relations  of  the  Com- 
mons and  the  Council,  e.xhibiting  the  ever  growing 
power  of  the  former,  it  is  doubtless  the  most  valuable 
single  document  in  the  Public  Records  on  the  constitu- 
tional development  of  the  province.  Bull's  own  life  as  a 
public  man  covered  much  of  what  he  described,  and  he 
could  therefore  explain  the  movement  of  many  causes 
and  motives  that  do  not  appear  in  the  official  Journals. 
He  took  the  same  ground  as  de  Grey,  but  recognized 
that  as  a  practical  question,  to  set  this  wrenching  of  the 

1  Pub.  Rec.  S.  C,  MS.,  XXXII.,  166-181. 

2  Some  consideration  of  this  is  found  in  Chapter  XI.  below  ;  the  full  discus- 
sion, however,  by  the  very  nature  of  the  case  is  found  in  the  portion  of  the 
thesis  not  published  at  this  time. 


64     CONSTITUTIONAL  HISTORY  OF  S.   C. 

instructions  constitution  right  would  require  the  most 
prudent  firmness  and  the  most  masterful  tact;  that  it 
was  a  task  of  the  utmost  difficulty,  if  indeed  it  were 
possible  at  all. 

On  the  strength  of  his  various  advices  the  King  ordered 
sent  to  the  Governor  or  Lieutenant  Governor  of  South 
Carolina  his  supremest  mandate,  known  as  the  "Addition- 
al Instruction  of  April  14,  1770."^  By  it,  the  claims  of 
the  Assembl}^  were  forbidden  in  the  most  emphatic  terms, 
and  the  absolute  coordinate  power  of  the  Council  in 
amending  and  passing  money  bills  was  reaffirmed  with 
the  greatest  positiveness  possible  to  employ.  The  King 
emphasizes  his  emphasis  and  italicizes  his  italics.  The 
Governor,  or  Lieutenant-Governor,  and  Council  were 
forbidden  under  pain  of  the  highest  displeasure  and  in- 
stant removal  to  allow  any  bill  to  pass  which  appro- 
priated a  single  farthing  except  for  specified  services  of 
the  King's  government  in  South  Carolina  or  for  his  di- 
rect specified  service  elsewhere.  —  "For  the  defence  of 
British  and  American  liberty!"  A  pretty  governmental 
service!— By  forbidding  the  reimbursing  of  the  treas- 
urers, the  King  hoped  not  only  to  win  the  constitutional 
point  at  issue,  but  to  be  able  to  sue  the  officers,  as  the 
law  provided,  for  thrice  the  amount,  and  so  accomplish 
their  punishment  and  ruin  as  an  example  for  the   future. 

So  here  is  the  battle  fairly  and  specifically  joined  be- 
tween the  King's  most  personal  Majesty  armed  wath 
the  prerogative,  and  the  Commons  House  of  Assembly 
armed  with  the  determination  to  maintain  the  undoubted 
rights  of  Englishmen,  which  are  getting  to  be  consid- 
erably doubted,  among  others  to  dispose  of  their  money 

1  Pub.  Rec.  S.  C,  MS.,  XXXII.,  236,  249. 


APPROPRIATION  OF  MONEY.  65 

as  they  pleased,  and  particularly  to  replace  the  ;^i  0,500 
currency  as  they  had  promised. 

The  Council  did  not  require  the  additional  instruction 
to  oppose  the  growing  pretentions  of  the  Commons. 
Their  own  dignity,  their  very  existence,  was  at  stake. 
Lieutenant-Governor  Bull  instructed  them  that  they 
should  reject  the  tax  bill  if  the  item  of  i^i  0,500  to  re- 
imburse the  treasurers  appeared. — Instructed  what  to 
pass  and  what  to  reject,  and  yet  claiming  to  be  a  coor- 
dinate House  of  the  legislature.^ — On  April  5,  1770,  be- 
fore the  arrival  of  the  additional  instruction,  or  reitera- 
tive amendment  of  the  constitution  as  we  might  call  it, 
the  Council  sent  in  to  the  Commons  a  message  on  the 
tax  bill,  making  certain  suggestions  but  not  attempting 
to  propose  any  formal  amendment.  The  message  was 
in  substance  as  follows: 

We  are  surprised  that  you  make  provision  for  reim- 
bursing the  public  treasurers  for  the  ^10,500  sent  to 
England.  All  moneys  are  granted  expressly  for  the 
King's  service;  but  this  ^lo,  500  "tacitly  affronts  His 
Majesty's  government."  We  do  not  desire  any  contest 
as  to  the  constitutional  rights  of  the  two  Houses  in  deal- 
ing with  money  bills,  nor  to  raise  the  question  of  our 
right  to  amend;  we  simply  wish  to  intimate  that  if  the 
tax  bill  stands  as  it  is,  it  will  likely  fail  to  obtain  our  con- 
currence, which  is  certainly  necessary.  Do  not  be  so 
stubborn  to  have  your  own  way  and  thus  stop  govern- 
ment and  destroy  public  credit.  We  do  not  enter  upon 
the  question  of  your  power  to  appropriate  the  £\o,  500  in 
the  first  instance  by  your  sole  resolution.  But  we  cannot 
let  the  affair  pass  without  at  least  this  notice,    lest    it 

1  Pub.  Kec.  S.  C,  MS.,  XXXII.,  298. 


66     CONSTITUTIONAL  HISTORY  OF  S.    C. 

should,  as  would  be  inevitable,  finally  come  about  that  our 
legislative  power  should  be  interpreted  away  and  con- 
strued into  mere  advice  to  the  Governor,  "according  to 
the  ingenious  distinction  of  a  Governor  many  years  ago.  "^ 
The  Commons  ordered  this  message  expugned  from 
their  Journal  as  an  injurious  and  indecent  insult. — Gen- 
tlemen of  the  Council,  we  do  not  wish  a  conflict;  to 
avoid  any  altercation,  we  return  to  you  your  paper  for 
your  calm  consideration." — But  instead  of  calmly  con- 
sidering their  message,  the  Council  sent  it  back  again. 
Then  waxed  the  anger  of  the  Commons.  Business  was 
dropped;  they  refused  to  hold  any  further  communica- 
tion, even  of  the  most  formal  character,  with  the  Coun- 
cil, and  entered  upon  the  consideration  of  the  conduct 
of  that  body.  Lieutenant-Governor  Bull,  believing  that 
it  is  idle  hands  that  Satan  finds  mischief  for,  urged  the 
Commons  to  consider  the  flour  and  tobacco  bills: — Very 
interesting,  gentlemen;  very  important;  commercial 
prosperity.  But  immediately,  he  says,  there  arose  a 
storm  of  "No!  No!"  On  April  9,  the  House  appointed 
a  committee  of  ten  of  the  leading  men  of  South  Caro- 
lina to  report  what  steps  were  necessary.  The  next 
morning  they  reported,  in  substance,  thus,  answering  the 
arguments  of  the  Council  and  arraigning  them   for  at- 

1  Com.  Jour.  S.  C,  MS.,  XXXVIII.,  387. 

It  seems  that  this  "ingenious  distinction"  was  made  in  about  1745  or  1750. 
On  one  occasion  (I  gather  about  the  date  just  named)  several  members  of  the 
Commons  went  to  the  Governor  and  informed  him  tliat  there  were  a  sufficient 
number  in  tlieir  House  willing  to  pass  the  tax  bill,  and  asked  whether  he 
would  sign  it  if  brought  to  him  without  having  been  submitted  to  the  Council. 
The  Governor  however  declined  to  consent  to  such  a  proceeding ;  what  "ingen- 
ious distinctions"  lie  then  uttered  as  private  opinions  I  do  not  know.  Since 
this  whole  proceeding  was  extralegal  there  is  liardly  any  likelihood  tliat  any 
trace  of  it  can  be  found  in  any  of  tlie  contemporary  Journals,  though  tlie  Pub- 
lic Records,  from  which  I  have  gathered  these  details,  which  are  given  by  Bull 
in  his  official  correspondence  in  1770,  may  contain  further  information. 

2  Com.  Jour.  S.  C,  MS.,  XXXVIII.,  384. 


APPROPRIATION  OF  MONEY.  67 

tempting  to  deny  the  rights  of  the  people's  representa- 
tives: 

The  Council's  seeking  to  usurp  the  just  rights  of  the 
Commons  is  responsible  for  whatever  injury  has  come  to 
the  government  and  the  public  credit.  Further,  we  re- 
port : 

ist.  Their  message  is  without  truth  or  justice,  and 
is  a  mean  attempt  to  bring  the  Commons  House  into 
contempt  before  their  sovereign  and  the  people. 

4th.  It  is  altogether  contrary  to  truth  and  to  the  un- 
deniable privileges  of  this  House  to  assert  or  insinuate 
that  it  has  not  power  to  appropriate  money  for  such  pur- 
poses as  that  for  which  we  appropriated  the  i^io,  500. 

5th.  The  contention  of  the  Council  to  control 
money  bills  is  a  "seditious  doctrine  ...  for  the 
interposition  of  some  power  to  raise  money  upon  the  in- 
habitants of  this  province  other  than  their  own  repre- 
sentatives." 

6th.  This  House  has  always  "exercised  a  right  of 
borrowing  moneys  out  of  the  treasury,  .  .  .  which 
right  no  Governor  has  ever  attempted  to  control." 

7th.  The  defense  of  the  constitutional  liberty  of  the 
people  of  Great  Britain  and  America  is  a  proper,  and 
not  a  disloyal  purpose. 

8th.  A  former  Governor's  opinion  concerning  the  ad- 
visory character  of  the  Council's  votes  only  confirms  our 
contention  that  you  are  no  Upper  House,  as  with  du- 
plicity you  claim  to  be.  We  hope  that  we  can  induce 
His  Majesty  to  appoint  a  real  Upper  House,  distinct 
from  the  Council,  which  shall  be  composed  of  men  of 
independence  and  property. 


68     CONSTITUTIONAL  HISTORY  OF  S.    C. 

9th.  We  will  prepare  an  address  to  His  Majesty  to 
grant  this  return  to  our  original  constitution. 

loth.  We  will  address  the  Lieutenant-Governor  to 
provide  some  immediate  remedy  for  the  Council's  "insult 
and  indignity  offered  to  this  House,"  and  to  prevent 
their  mischievously  stopping  the  public  business.^ 

These  resolutions  were  as  obnoxious  to  Lieutenant- 
Governor  Bull  as  to  the  Council.  Yet  his  prudence  and 
conciliatory  mien,  unlike  the  high  conduct  of  the  English 
Governors,  had  not  allowed  him  to  come  to  a  clash  with 
the  Assembly.  But  he  was  on  the  alert.  He  knew 
well,  he  wrote  to  the  Ministry,  the  danger  of  allowing 
"popular  assemblies  .  .  .  to  be  hurried  by  their 
heated  imaginations  into  wanton  and  extravagant  reso- 
lutions, from  which  they  rarely  can  be  brought  after- 
wards to  recede."  But  to  the  Commons  he  said,  in  sub- 
stance: Gentlemen,  your  private  affairs  at  this  season  of 
the  year  doubtless  require  your  attention.  You  have 
earned  my  thanks  by  your  close  attention  to  the  public 
business.  Therefore,  on  this  iith  of  April,  1770,  being 
planting  time,  I  do  prorogue  this  General  Assembly. — 
And  "may  God  save  the  King!"  This  prorogation  pre- 
vented the  Commons  from  coming  to  a  vote  on  their 
resolutions;  but  greatly  to.  Bull's  chagrin,  almost  all  the 
members,  though  deprived  of  official  character,  joined 
in  publishing  them  in  the  newspapers,  along  with  much 
other  matter  of  the  same  kind."  When  the  resolutions 
were  at  last  voted  on  months  afterwards,  those  desiring 
the  King  to  take  away  the  legislative  power  of  the  Coun- 
cil were  omitted.^ 


1  Com.  Jour.  S.  C,  MS.,  XXXVIII.,  389. 

2  Com.  Jour.  S.  C,  MS.,  XXXVIII.,  393  ;  Pub.  Rec.  S.  C,  MS.,  XXXII.,  256. 

3  Pub.  Rec.  S.  C,  MS..  XXXII.,  316. 


APPROPRIATION  OF  MONEY.  69 

As  we  remember,  a  few  instances  of  the  Commons 
alone  ordering  money  out  of  the  treasury  in  times  of 
crisis  had  been  allowed  to  pass  ''S2ib  silent  10,''  because 
of  the  notorious  reasonableness  of  the  service.  'Now 
the  Commons  claimed  these  instances  as  proving  their 
undoubted  constitutional  right,  as  established  by  the 
usages  of  the  past,  which  the  usurping  Council  were 
trying  to  wrest  from  the  representatives  of  the  people. 
They  had  their  London  agent,  Charles  Garth,  to  pre- 
sent their  claims  to  the  King  and  prove  that  they  had 
not  been  appropriating  money  by  their  sole  authority, 
but  only  borrowing  it.^  But  Majesty's  ears  were  sealed 
like  a  granite  mountain  side  against  pleadings  for  a  prac- 
tice in  which  lurked  John  Wilkes  and  a  whole  host  of 
abominations. 

So  this  is  the  plan:  Commons  to  "borrow"  money 
from  the  treasury  for  such  purposes  as  the  Governor  and 
Council  would  never  approve,  and  insert  enough  in  the 
next  tax  bill,  to  be  passed  by  Commons,  Governor  and 
Council,  to  replace  the  borrowed  funds,  apprehending 
that  the  Governor  would  not  veto  the  whole  budget  and 
stop  the  government  just  for  that  one  item.  We  see 
too  how  necessary  it  was  to  deny  the  Council's  power  of 
amendment  and  force  them  to  pass  or  reject  the  whole 
as  it  stood. 

A  new  Assembly  met,  but  there  was  no  break  in  the 
deadlock.  The  Commons  declared  that  unless  the 
additional  instruction  of  April  14  was  revoked,  they 
would  raise  no  money,  even  for  years  to  come.  The 
Governor  and  the  Council  had  from  the  first  set  them- 
selves, considering  whether  it  were  not  well  to  die  in  this 
last  ditch  of  their  old  time  prerogative.      By  the  addi- 

1  Pub.  Rec.  S.  C,  MS.,  XXXII.,  422;  XXXIII.,  142. 


^o     CONSTITUTIONAL  HISTORY  OF  S.   C. 

tional  instruction  they  were  trebly  fortified,  and 
when  Majesty's  own  pats  on  the  back  began  to  come 
with  every  mail  from  London,  they  were  elevated  into  a 
sort  of  ecstatic  stiff-neckedness  unto  eternal  unyielding- 
ness. My  Lord,  writes  Bull  in  substance,  we  will 
never  yield  now.  I  have  informed  the  Council  of  the 
King's  approbation  of  their  conduct,  "and  they  have 
desired  me  to  inform  your  Lordship  in  the  most  express- 
ive terms  that  the  King's  approbation  of  their  conduct 
fills  them  with  the  deepest  sentiments  of  gratitude  and 
animates  them  with  firmness  to  support  every  measure 
that  can  demonstrate  their  zealous  attachment  to  His 
Majesty's  person  and  government."^ 

No  tax  bill  was  passed  and  funds  to  carry  on  the  gov- 
ernment began  to  be  lacking.  Only  the  general  duty 
law  continued.  In  1771  writes  Governor  Lord  Montagu, 
who  arrived  in  September,  "The  King's  officers  suffer  for 
their  salaries."^  The  Commons  would  make  no  conces- 
sion of  their  claim  to  issue  their  own  money  as  they 
pleased.  In  October,  1771,  they  repeated  their  de- 
fiance by  ordering  the  public  treasurers  to  advance 
^3,000  currency,  to  be  reimbursed  to  them,  for  pur- 
chasing raw  silk  for  export  for  the  encouragement  of  the 
production  of  that  staple  in  the  province.  The  treasur- 
ers, between  the  devil  of  a  King  and  the  deep  blue  sea 
of  an  Assembly,  knew  not  what  to  do.  Prudence  forced 
them  humbly  to  refuse,  as  their  bonds  would  be  sued 
and  they  themselves  utterly  ruined.  Whereupon,  for 
this  violation  and  contempt  of  their  authority  and  privi- 
leges, the  House  ordered  the  treasurers  into  the  '  'com- 
mon gaol  in  Charles  Town."     Such   an  offence  by  the 

1  Pub.  llec.  S.  C,  MS.,  XXXIII.,  39. 

2  Pub.  Rec.8.  C,  MS.,  XXXIII.,  87. 


APPROPRIATION  OF  MONEY.  71 

Commons  against  the  express  letter  of  the  King's  in- 
struction merited  nothing  less  than  the  parliamentary 
death  penalty  ;  a  dissolution  instantly  put  a  period  to 
their  existence.^ 

How  striking  is  the  parallel  to  English  history,  where 
the  British  Commons  are  calling  to  account  some  royal 
servant  who  has  acted  with  contempt  towards  their 
House  or  has  been  guilty  of  some  more  serious  act  of 
enmity  against  the  people,  and  who  is  rescued  from  the 
Commons  by  a  royal  prorogation  or  dissolution. 

For  some  time  the  Earl  of  Hillsborough,  Principal 
Secretary  of  State  for  America,  was  unstinting  in  his  en- 
dorsement of  the  Governor's  position.  We  must  bring 
these  unreasonable  Commons  to  terms,  he  says.^  But 
he  little  knew  the  nature  of  his  task.  By  the  spring  of 
1772  he  is  looking  around  for  some  loophole  by  which 
the  King  can  escape  and  yet  win  the  victory  over  the 
Commons.  While  such  hints  and  compromises  were 
being  held  out,  the  new  Assembly  met,  in  the  early 
part  of  April,  and  showed  their  own  uncompromising 
spirit  by  beginning  their  career  with  an  absolute  refusal 
to  proceed  to  any  business  so  long  as  the  additional  in- 
struction remained  unrevoked.  Dissolution  was  in- 
stant.^ Many  of  the  members  then  met  in  a  kind  of 
caucus  and  resolved,  first,  that  they  would  pass  no  tax 
bill  without  the  iJ^i  0,500  being  included  in  it  ;  second, 
nor  any  tax  bill  containing  any  allusion  to  the  King's  of- 
fer to  compromise  by  allowing  a  special  separate  bill  for 
the  contested  sum  ;  third,  that  they  would  on  no  ac- 
count pass   any   act  declaring  the  Council  to  have   an 

1  Com.  Jour.  S.  C,  M.S.,  XXXVII.,  54.?,  582-1 ;  Pub.  Rec.  S.  C,  MS.,  XXXIII., 
89. 

2  Pub.  Kec.  S.  C,  MS.,  XXXIII.,  105-7. 

3  Pub.  Rec.  S.  C,  MS.,  XXXIII.,  140. 


72     CONSTITUTIONAL  HISTORY  OF  S.   C. 

equal  voice  in  the  passing  of  money  bills.  ^  You  may 
believe  this  like  inspiration,  My  Lord,  says  Governor 
Lord  Montagu. 

To  have  the  advances  of  a  King,  made  through  an 
Earl,  thus  flouted  was  not  pleasing  to  a  Principal  Secre- 
tary of  State.  Lord  Hillsborough  began  to  grow  im- 
patient with  Lord  Montagu,  like  Spanish  monarchs 
with  explorers  who  kept  returning  without  the  gold, 
which  monarchs  knew  could  be  got  if  the  stupid  ex- 
plorers would  only  go  at  it  right.  He  sends  such  mes- 
sages as  wound  the  heart  of  the  faithful  Governor.  On 
July  I,  1772,  he  writes,  in  substance,  thus:  You  must 
not  be  so  violent  ;  you  must  carry  the  King's  point,  yet 
conciliate  the  Commons  ;  you  must  be  unbendingly  firm, 
but  perfectly  unantagonistic  ;  you  must  carry  water  on 
both  shoulders  at  once,  sir  !  Now,  when  that  new  As- 
sembly meet,  you  must  let  them  have  their  say,  and 
only  after  calm  and  temperate  treatment  fails  to  bring 
them  to  reason  are  you  to  dissolve  them.  We  can't  re- 
voke that  additional  instruction  of  April  14,  1770  ;  but 
if  the  Assembly  would  of  its  own  accord  pass  a  declara- 
tion to  the  effect  that  the  Council  has  equal  rights  in 
amending  money  bills,  and  that  no  funds  can  be  issued 
without  their  concurrence,  why  then,  you  see,  the  addi- 
tional instruction  would  just  fall  into  desuetude  of  itself. 
This  trouble  will  soon  be  over  ;  for  I  am  sure  that  the 
substantial,  thinking  men  don't  uphold  the  usurpations 
of  the  Commons.'^ 

In  nothing  could  Lord  Hillsborough  have  been  more 
in  error  than  in  his  closing  opinion.  It  was  the  men  of 
education    and    wealth   in  the  province   who     were  the 

1  Pub.  llec.  S.  C,  MS.,  XXXIII.,  175. 

2  Pub.  Rec.  S.  C,  MS.,  XXXIII.,  161-4. 


APPROPRIATION  OF  MONEY.  73 

quickest  and  most  unyielding  in  defence  of  their  own  and 
America's  rights.  To  the  Speaker  of  the  Commons 
himself,  Hon.  Rawlins  Lowndes,  is  recorded  a  single 
grant  of  thirty  thousand  acres.  Untitled  barons  these 
great  planters  were,  who  counted  their  servants  and  cat- 
tle after  the  arithmetic  of  Job. 

In  the  summer  of  1772  Lord  Montagu  hit  upon  a 
strategy  for  conquering  the  Commons  miraculous  in  its 
clumsiness.  As  he  knew  they  would  never  omit  the 
;^io,  500  while  in  Charleston,  he  says,  he  would  convene 
them  in  the  remote  village  of  Beaufort,  where  members 
could  ill  afford  to  go  at  all  and  where  they  might  be 
shaken,  as  it  were,  into  compliance  by  a  series  of  short, 
jerky  prorogations.^  In  Beaufort,  therefore,  he  sum- 
moned them,  expecting  a  sparse,  weak  attendance.  In 
this  small  town,  some  fifty  miles  in  a  direct  line  down 
the  coast,  the  Assembly  met,  on  October  8,  1772. 
There  was  the  fullest  attendance  for  the  first  day  of  an 
Assembly  ever  recorded  in  the  history  of  the  province. 
The  Governor  now  had  two  lights  on  his  hands  ;  the  old 
matter  of  theiJ^io,  500  and  its  attendant  constitutional 
questions,  and  the  new  one  of  calling  the  Assembly  in  an 
unusual  place,  a  thing  which  had  never  been  done  ex- 
cept for  causes  of  public  necessity.  On  the  lOth  Lord 
Montagu  made  the  Commons  a  well  worded  speech 
and  prorogued  them  for  twelve  days,  to  meet  at  their 
accustomed  place  in  Charleston.  His  plan  had  been 
worse  than  a  failure  ;  it  had  given  a  new  vantage  ground 
and  additional  strength  to  the  enemy. 

On  the  22dof  October  the  Assembly  reconvened,  ac- 
cording to  prorogation,  in  the  capital.      On  the  23d  they 

1  Pub.  Rec.  S.  C,  MS.,  XXXIII.,  167,  174. 


74     CONSTITUTIONAL  HISTORY  OF  S.   C. 

appointed  a  committee  to  draft  a  message  to  the  Gov- 
ernor. Usually  the  few  prompt  members  had  to  wait 
several  days,  perhaps  more  than  a  week,  for  a  sufficient 
number  to  make  a  house  and  proceed  to  business.  But 
not  so  now.  Lord  Montagu  was  demanded  his  reasons 
for  calling  the  Assembly  away  from  the  capital,  in  the 
remote  village  of  Beaufort.  For  the  public  benefit,  an- 
swered the  Governor.  Your  explanations  do  not  ex- 
plain, replied  the  House,  and  proceeded  to  draft  very 
strong  resolutions  denouncing  the  conduct  of  Lord 
Montagu.  The  report  of  their  committee  is  very  vig- 
orous.     They  say  in  substance  : 

The  Governor's  conduct  calls  for  the  utmost  resent- 
ment. It  was  intended  to  intimidate  or  weary  the  peo- 
ple into  compliance  with  his  oppression ;  but  let  him 
know  that  nothing  could  cause  them  to  deviate  "in 
the  minutest  degree  from  the  rights  and  privileges  of  the 
people."  Sir,  such  conduct  shall  not  become  a  pre- 
cedent. The  troubles  of  this  province  are  not  due  to 
the  people's  representatives,  but  to  you,  who  veto  their 
good  laws  and  violate  their  privileges.  And  as  for  that 
matter  of  the  i^io,  500  which  started  all  this,  we  would 
state  that  it  is  an  undoubted  constitutional  principle  that 
the  Commons  have  the  control  in  framing  money  bills. 
And  as  for  your  Excellency's  reflection  regarding  the 
duty  of  "a  wise  senator  to  annihilate  an  unconstitution- 
al claim,"  we  would  remark  that  the  same  observation 
might  apply  with  equal  propriety  to  a  truly  patriotic 
Governor. 

During  this  session  Lord  Montagu  sent  for  the  Jour- 
nals every  day,  so  as  to  prevent  any  high  schemes  the 
Commons  might  have  in  view.  On  October  29,  when 
his  messenger  went  as  usual  to  the  clerk  of  the  House, 


APPROPRTATION  OF  MONEY.  75 

that  functionary  replied  that  the  speaker  had  himself  taken 
charge  of  the  Journals.  This  made  the  Governor  very 
angry  ;  he  did  not  succeed  in  getting  the  wished  for  re- 
cords until  ten  minutes  before  the  convening  of  the 
House  the  next  morning.  They  were  so  blotted  and  in- 
terlined as  to  be  almost  totally  illegible.'  Then  the 
Governor  was  still  more  angry.  But  his  ire  was  to 
know  a  yet  hotter  flame.  When  he  did  succeed  in  de- 
ciphering the  blotted,  scrawling  pages  sufficiently  to 
gain  the  drift  of  things,  he  loaded  his  gubernatorial  can- 
non with  an  immense  bombshell  of  a  prorogation  and 
summoned  the  Assembly  into  immediate  attendance,  to 
be  blown  into  the  middle  of  week-after-next.  He  dared 
not  discharge  at  them  a  dissolution  ;  for  the  ministerial 
hand  had  only  recently  smitten  him  for  so  angering  the 
Commons. 

But  for  Lord  Montagu  there  were  still  greater  sur- 
prises and  still  greater  anger,  rising  even  to  the 
"unprecedented"  point.  When  the  summons  arrived, 
whose  significance  the  members  well  knew,  the  House 
was  just  coming  to  a  vote  on  the  resolutions.  They 
were  not  to  be  thus  wheedled  out  of  denouncing  the  viola- 
tor of  their  rights.  As  in  a  somewhat  similar  case  dur- 
ing the  resistance  to  Charles  I.,  they  ordered  the  Speak- 
er not  to  quit  the  chair  until  their  business  was  finished. 
But  no  Holies  and  Valentine  were  needed  now  to  seize 
a  reluctant  presiding  officer  and  force  him  back  into  his 

1  The  Commons  deny  that  their  .fournal  was  put  In  this  condition  for  the 
purpose  of  concealing  anytliing.  It  was,  they  said,  ttie  rough,  untranscribed 
draft.  Quite  true,  doubtless;  but  note  that  on  former  days  the  Governor  had 
met  no  such  difficulties.  (Pub.  Rec.  S.  C,  M8.,  XXXIII.,  208.)  Speaker 
Lowndes  appeared  in  a  newspaper  article  in  the  South  Carolina  Gazetlv  for 
November  12,  in  reply  to  the  aspersion  of  Lord  Montagu,  and  maintained 
that  he  had  as  good  a  right  as  the  Governor  to  inspect  the  Journals  over  night. 
To  my  mind  there  is  hardly  a  doubt  that  there  was  a  desire  to  keep  the  Gover- 
nor in  ignorance  in  order  to  prevent  an  adjournment. 


^6     CONSTITUTIONAL  HISTORY  OF  S.   C. 

place.  ^  The  House  refused  to  come  until  it  had  passed 
its  resolutions.  This  was  an  unprecedented  action  of 
the  most  serious  character.  If  the  Commons  began  to 
disregard  the  summons  of  the  Governor  and  continued 
to  transact  business,  it  was  a  short  road  to  destroying 
the  royal  prerogative  of  prorogation  and  dissolution. 
Having  passed  their  resolves,  the  House  attended  the 
Governor  in  the  Council  chamber,  where  they  were 
angrily  reprimanded  and  then  prorogued. 

Governor  Montagu  recognized  the  gravity  of  the 
crisis  in  which  the  royal  government  in  South  Carolina 
stood.  On  November  4,  1772,  he  wrote  to  the  minis- 
try that  the  state  of  affairs  was  most  alarming  and  un- 
less arrested  would  shake  the  very  power  of  the  King. 
The  Commons,  he  said,  had  made  three  innovations 
that  would  bring  about  a  revolution  in  the  "very  nature 
of  the  constitution."  First,  for  three  years  they  had 
maintained  their  right  to  dispose  of  the  public  money  on 
their  sole  authority  ;  second,  they  had  proceeded  with 
business  after  being  summoned  instantly  to  attend  the 
Governor  ;  third,  their  committee  of  correspondence 
had  continued  to  act  after  a  prorogation.^  On  this  last. 
Lord  Montagu  put  special  emphasis,  as  it  put  it  utterly 
beyond  his  power  to  stop  schemes  of  agitation  or  combi- 
nation that  were  hostile  to  himself  or  to  the  King's 
interests. 

1  In  1628-9  the  British  House  of  Commons  summoned  a  tax  collector  for  con- 
tempt; the  King  prorogued  them  for  the  protection  of  his  servant.  On  their 
reassembling  he  again  ordered  them  to  adjourn.  Eliot  rose  to  propose  resolu- 
tions ;  the  Speaker  left  the  chair,  saying  that  the  King  had  ordered  him  to  do 
so  if  anyone  attempted  to  speak.  Holies  and  Valentine  seized  him  and  forced 
him  down  into  the  chair,  the  former  exclaiming,  "God's  wounds,  you  shall  sit 
here  till  wp  please  to  rise  !"  The  resolutions  were  passed  and  the  House  ad- 
journed. In  an  angry,  threatening  speech  the  King  dissolved  them.  (Taswell- 
Jjangmead,  576.)  The  similarity  in  tlic  South  Carolina  case  was,  of  course,  no 
slavish  imitation  of  the  above  instance,  hut  a  similar  result  from  similar  causes 
in  a  House  which  professed  the  British   House  of  Commons  to  be  its  model. 

2  Pub.  R«c.  S.  C,  MS.,  XXXIII.,  191. 


APPROPRIATION  OF  MONEY.  77 

Further  details  of  the  contest  are  needless.  On  Sep- 
tember 13,  1773,  the  Commons  again  manifested  their 
defiance  of  the  additional  instruction  and  their  determi- 
nation to  control  their  own  money  affairs  by  ordering 
the  treasurers  to  issue  ^1,500  currency  to  the  Commis- 
sary general  for  poor  Irish  immigrants.  A  few  days 
later  they  ordered  three  thousand  pounds.^ 

Just  at  this  time  occurred  the  grand  climacteric  in  the 
revolution  which  had  been  going  on  for  fifty  years  in 
the  relations  of  the  Commons  and  the  Council.  The 
occasion  was  so  interesting  and  the  outcome  so  im- 
portant that  we  must  open  another  chapter. 

1  Com.  Jour.  S.  C,  MS.,  XXXIX.,  pt.  II.,  76,  98;  Pub.  Rec.    S.  C,  MS., 
XXXIII.,  305. 


CHAPTER  X. 

Attempt  of  the  Commons  to  Abolish  the 
Legislative  Character  of  the  Council. 

In  the  many  contests  to  wrest  power  from  the  Coun- 
cil, the  Commons  had  always  denied  their  authority  in 
framing  money  bills,  but  had  admitted  the  necessity  of 
their  concurrence  for  the  passage  of  those  and  of  all 
other  regular  acts  of  legislation.  Demurrer  was  often 
made  by  members  as  a  matter  of  private  opinion  ;  but 
no  official  declaration  against  the  necessity  of  the  Coun- 
cil's assent  occurred  until  very  late  in  the  provincial 
history. 

When  in  their  message  of  April,  1770,  the  Council 
said  that  they  could  not  allow  the  action  of  the  Commons 
regarding  the  ^10,500  to  pass  unnoticed,  lest  their  own 
legislative  power  should  be  construed  into  mere  advice 
to  the  Governor,  they  showed  their  apprehension  of 
such  a  claim. 

As  early  as  about  1745  or  1750,  in  a  dispute  between 
the  two  bodies,  certain  Commoners  waited  upon  the 
Governor  to  ascertain  whether  or  not  he  would  accept 
and  sign  the  tax  bill  if  sent  to  him  from  the  Commons 
without  having  been  passed  by  the  Council.  But  this  was 
too  radical  and  sudden.  The  Governor  replied  that  he 
could  not.  From  then  on  the  theory  of  the  Commons, 
asserted  from  time  to  time  with  more  or  less  explicitness, 
but  never  brought  to  the  test,  was  that  the  vote  of  the 
Council  was  mere  advice  to  the  Governor  to  pass  or  re- 
ject   a    law,    which    he    might    follow    or    ignore   as  he 


COMMONS   TO  ABOLISH.  79 

pleased.^  He  could  certainly  refuse  to  accept  the  "ad- 
vice" of  an  affirmative  vote,  and  veto  the  bill;  but  whether 
he  could  ignore  the  "advice"  of  a  negative  vote  and 
pass  an  act  against  the  will  of  what  the  King  declared  to 
be  a  coordinate  lawmaking  body  with  the  Commons, 
was  quite  another  question.  As  the  third  quarter  of  the 
1 8th  century  advanced,  the  opinion  became  more  and 
more  general  that  the  Council  was  not  properly  an  inde- 
pendent branch  of  the  legislature.  Though  the  Com- 
mons never  attempted  to  pass  laws  simply  by  their  own 
authority  and  the  concurrence  of  the  Governor,  they  yet 
about  1754  dropped  the  appellation  of  "Upper  House" 
and  "Lower  House,"  and  refused  to  carry  on  any  com- 
munications in  which  those  terms  were  used.  In  the 
year  1763,  e.  g. ,  a  message  was  sent  to  them  signed 
"Speaker  of  the  Council."  The  Commons  refused  fur- 
ther intercourse  with  the  Council  until  the  offensive 
words  were  replaced  by  the  accustomed  "President";  for 
the  term  "Speaker,"  they  said,  implied  that  the  Coun- 
cil was  a  House  of  the  legislature.'-  In  their  resolutions 
of  April,  1770,  the  Commons  formally  declared  that  the 
Council  was  no  upper  house  ;  but,  they  said,  an  upper 
house  was  needed  ;  they  expressed  a  desire  that  there 
might  be  such  a  true  upper  house,  and  announced  their 
intention  of  petitioning  that  one  should  be  appointed  by 
the  King. 

The  great  ;,{^i  0,500  contest  brought  the  whole  consti- 
tution of  the  province  of  South  Carolina  into  examina- 
tion. Never  before  had  the  royal  elements  scrutinized 
so  closely  the  letter  of  the  law  to  justify  their  privileges  ; 
never  before  had  the  Commons  gone  so  far  in  the  asser- 

1  Pub.  Rec.  S.  C,  MS.,  XXXIII.,  306. 

2  Cora.  Jour.  S.  C,  MS.,  XXXVI.,  30. 


8o     CONSTITUTIONAL  HISTORY  OF  S.   C. 

tion  of  their  powers.  Each  instance  of  derogation  by 
the  Commons  from  the  authority  of  the  Council  was  to 
gain  some  specific  end.  It  was  to  be  expected  that  the 
most  protracted  and  serious  contest  that  ever  occurred 
between  the  two  bodies  would  leave  some  new  and 
important  change  in  their  permanent  relations.  Such 
was  the  case.  In  1773  a  judicial  decision  and  the  ac- 
tion of  Commons  united  to  deny  the  legislative  charac- 
ter of  the  Council  with  a  deliberation  and  emphasis 
which  make  this  one  of  the  most  important  incidents  in 
the  long  struggle.  This  was  not  precipitated  directly 
by  the  money  bill,  though  the  highly  charged  state  of 
public  feeling  due  to  the  still  pending  ^10,500  was  the 
efficient  cause. 

In  1773  the  Council  was  composed  of  eight  members, 
not  including  two  who  had  long  been  absent  in  England 
and  the  Lieutenant-Governor,  who  after  March  10 
administered  the  government.  Three  of  these  were  in- 
dependent South  Carolinians;  five  were  royal  officehold- 
ers, mostly  if  not  altogether  Englishmen.  This  latter 
group  was  composed  of  the  chief  justice  and  an  assistant 
judge,  both  Englishmen,  the  secretary  of  the  province, 
the  receiver  general  of  His  Majesty's  quit  rents,  and  the 
superintendent  of  Indian  affairs.^  John  Drayton,  his 
son  William  Henry  Drayton,  and  Bernard  Elliott,  all 
independent  South  Carolinians,  maintained  in  the  Coun- 
cil the  same  doctrines  their  fellow  citizens  preached 
in  the  Commons. 

Part  of  the  proceeding  of  the  Council  on  August  26, 
I773»  ws^s  a  protest  by  two  of  the  minority  against  the 
business  blocking  conduct  of   that   body.      This    paper 

1  Pub.  Rec.  of  B.  C,  MS.,  XXXIII.,  256;  XXXIV.,  228;  XXXVI.,  279. 


COMMONS   TO  ABOLISH.  8i 

they  gave  to  Mr.  Thomas  Powell  to  publish  in  his 
journal,  the  South  Carolina  Gazette,  which  on  August 
30  he  accordingly  did.  The  Council  considered 
Printer  Powell's  act  a  violation  and  contempt  of  their 
privileges  and  committed  him  to  the  common  jail  in 
Charleston,  on  a  warrant  signed  by  their  President,  Sir 
Egerton  Leigh. 

When  the  Habeas  Corpus  Act  was  made  of  force 
in  South  Carolina  by  the  Assembly  in  17 12,  it  was  pro- 
vided that  any  two  justices  of  the  peace  (one  being  of 
the  quorum)  should  have  authority  to  grant  the  writ. 
On  September  3,  1773,  Messrs.  Rawlins  Lowndes  and 
G.  G.  Powell,  formerly  assistant  judges  but  now  only 
magistrates,  in  accordance  with  this  law  granted  the 
confined  printer  his  liberty.  Now,  it  happened  that 
Rawlins  Lowndes  was  Speaker  and  Col.  G.  G.  Powell 
a  member  of  the  Commons  House  of  Assembly,  which 
was  at  that  time  in  session.  For  their  "most  atrocious 
contempt"  upon  the  Council,  that  body  requested  the 
Commons  to  withdraw  from  these  two  gentlemen  the 
protection  of  their  privileges  of  membership,  that  they 
too,  doubtless,  might  be  committed  to  the  common  jail. 
This  the  House  refused  to  do,  though  both  members 
desired  it.  On  the  contrary,  the  Commons  ordered  all 
the  papers  in  the  case  to  be  laid  before  them  and  pro- 
ceeded to  summon  and  examine  persons.  Thus  Mr. 
Lowndes's  and  Mr.  G.  G.  Powell's  decisions  are 
preserved  verbatim,  and  most  important  and  interest- 
ing decisions  they  are;  for  that  of  Mr.  Lowndes  is  the 
most  complete  and  deliberate  statement  of  the  consti- 
tutional theory  of  the  Commons  regarding  the  legisla- 
ture of  the  province  that  exists.  Moreover,  it  forces  the 
issue  to  its  logical  conclusion,  as  had  never  been  done 


82     CONSTITUTIONAL  HISTORY  OF  S.    C. 

before.  The  substance  of  Mr.  Lowndes's  opinion  is  as 
follows: 

I  hope  that  my  connection  with  the  Commons  House 
of  Assembly  does  not  prevent  my  according  to  every 
other  part  of  the  community  their  just  rights.  The 
laws  provide  for  the  safety  of  every  man's  person,  liber- 
ty and  estate.  By  the  Great  Charter  no  man  shall 
be  imprisoned  but  by  the  judgment  of  his  peers  or  the 
law  of  the  land.  This  and  all  similar  statutes  for  the 
security  of  the  subject  were  made  of  force  in  this  province 
by  act  of  Assembly  in  171 2. 

Both  Houses  of  Parliament  have  from  time  immemor- 
ial exercised  the  right  of  imprisoning  during  their  sit- 
tings persons  guilty  of  contempt,  and  it  is  the  uniform 
practice  of  the  courts  never  to  interfere,  but  if  appealed 
to,  always  to  remand  the  prisoner  to  confinement,  as  the 
Houses  of  Parliament  are  the  supreme  judges  of  their 
privileges.  Let  us  therefore  enquire  what  resemblance 
exists  between  the  Council  in  South  Carolina  and  the 
House  of  Lords  in  England,  that  the  former  should 
arrogate  to  themselves  the  privileges  of  the  latter. 

"The  Lords  are  a  permanent  body,  inheriting  their 
right  of  legislation  independently  of  the  crown."  They 
are  the  supreme  court  of  judicature  of  the  realm, ^  and  try 
their  own  members  on  life  and  death  without  beinsr 
upon  oath.  The  Council,  on  the  other  hand,  are  mere 
appointees  of  the  K^ing,  removable  at  his  pleasure. 
Therefore  they  lack  the  greatest  essentials  of  a  legisla- 
tive body  to  approximate  them  to  the  Lords,  permanen- 
cy and  independence.      Whereas   the    British   Peers   are 

1  We  remember  that  the  Governor  and  Council  were  by  the  royp.l  In- 
structions the  supreme  court  of  appeal  in  South  Carolina,  but  that  this  juris- 
diction was  never  exercised. 


COMMONS   TO  ABOLISH.  83 

numerous  and  are  the  bulwarks  for  the  people  against 
tyranny,  the  Council  are  few,  only  three  at  a  meeting 
often  determining  matters  of  the  greatest  import;  and 
besides,  "the  object  of  their  care  is  more  particularly 
the  Prerogative.''  True,  the  Governor  is  restrained  from 
passing  any  law  to  which  the  Council  has  not  assented. 
From  this  single  circumstance  of  the  Governor's  being 
subjected  to  their  advice  they  have  arrogated  to  them- 
selves the  position  of  an  upper  house  of  the  legislature. 
"As  if  a  right  to  advise  the  Governor  to  pass  or  reject  a 
bill  involved  in  it  of  necessary  consequence  all  other 
privileges  belonging  to  the  Upper  House  of  Parlia- 
ment  

'  'I  am  of  opinion  that  there  is  no  foundation  in  law 
for  the  commitment"  of  Printer  Powell.  It  is  a  "usur- 
pation of  power  in  the  Council.  .  .  .  The  commit- 
ment is  therefore  in  my  opinion  to  be  considered  merely 
as  a  commitment  by  the  Privy  Council,  and  in  that  case 
has  no  other  authority  than  if  done  by  a  private  magis- 
trate. The  subject  has  his  remedy  by  habeas  corpus 
in  either  case,  and  we  are  now  to  consider  whether  the 
matter  charged  is  an  offense  at  law,  and  if  an  offense 
whether  bailable  or  not. 

"I  am  of  opinion  that  it  is  no  offense  at  law. 

"I  am  therefore  for  ordering  the  prisoner  discharged.  " 

Col.  G.  G.  Powell's  much  shorter  judgment  to  the 
same  effect  was  then  read.  The  House  unanimously 
endorsed  the  opinions  of  the  two  justices,  and  addressed 
the  Lieutenant-Governor  to  suspend  all  the  Councillors 
who  had  been  concerned  in  this  usurpation  of  power  and 


84     CONSTITUTIONAL  HISTORY  OF  S.   C. 

unparalleled  insult  to  the  Commons.  Of  course  the 
request  was  refused.^ 

Printer  Powell  brought  suit  against  Sir  Egerton  Leigh, 
who  signed  the  warrant,  for  assault  and  false  imprison- 
ment." The  court,  presided  over  by  King-appointed 
judges,  two  of  whom  as  Councillors  had  helped  order  the 
arrest,  naturally  declared  that  the  Council  was  an  upper 
house  of  the  legislature,  and  discharged  the  suit. 

In  the  spring  of  1775,  William  Henry  Drayton  was 
suspended  from  the  Council  on  the  address  of  the  place- 
men there,  because  he  had  published  aspersions  upon  the 
King's  officers  and  government  in  his  "Letter  from 
Freeman,"  August  30,  1774,  and  had  denied  that  the 
Council  was  an  upper  house  of  Assembly.  In  his 
defense  he  seeks  to  put  his  persecutors  in  a  dilemma. 
Judges  Gordon  and  Gregory,  he  says,  themselves  Coun- 
cillors, dismissed  the  suit  of  Printer  Powell  against  Sir 
Egerton  Leigh,  on  the  ground  that  the  latter  could  not 
be  questioned  outside  the  Council  for  any  acts  or  words 
in  its  proceedings,  because  that  body  was  a  house  of  the 
legislature  analogous  to  the  House  of  Lords.  Now 
these  judges,  as  members  of  the  Council,  contradict 
their  own  decision  by  indicting  me  before  an  outside 
jurisdiction,  the  Lieutenant  Governor.^ 

Drayton's  argument  proves  that  the  Council  was 
no  fit  legislative  body,  but  it  does  not  prove  that  it  was 
no  legislative  body.  The  general  principle  that  its 
members  were  not  to  be  questioned  by  any  outside  juris- 
diction did  not  exclude  the  right  of  the  Council  itself  to 
arraign  a  member  before  some  authority  constituted   for 

1  Com.  Jour.  S.  C,  MS.,  XXXIX.,  pt.   II.,  70-88,  96;  S.   C.    Guz.,  Sept.  2,  6, 
13,  1773.  r  ,  ,       ,  ,        i-        ,     , 

2  This  seems  to  have  been  a  civil  suit  for  damages. 

3  Com.  Jour.  H.  C,  MS.,  XXXIX.,  pt.  11.,  254-69. 


COMMONS   TO  ABOLISH.  85 

the  purpose  by  the  same  law  that  created  the  Council 
itself.  This  was  really  not  trying  a  member  before 
an  outside  jurisdiction,  but  was  simply  requesting  that 
outside  power  to  execute  upon  him  the  sentence  the 
body  itself  had  come  to  after  conducting  the  trial, 
or  discussion,  by  itself.  True,  the  Governor 
could  suspend  a  Councillor  independently  without  this 
process,  but  only  under  extraordinary  circumstances; 
this  phase  of  the  law  was  not  under  discussion. 

In  their  commitment  of  the  treasurers  in  1771  for 
refusing  to  advance  ;^3,ooo  on  the  sole  order  of  the 
Commons,  that  body  was  wholly  outside  the  formal 
constitution.  Their  contentions  were  just,  but  not 
legal.  The  disorder  to  which  final  disruption  from 
England  was  due  was  that  law  and  justice  had  ceased 
to  be  the  same.  In  all  their  efforts  to  destroy  the  power 
of  the  Council,  it  was  an  independent,  very  constitution- 
al people  struggling  against  an  unnatural  external 
authority  and  seeking  to  find  constitutional  justification 
for  their  acts.  The  root  of  all  the  trouble  lay  in 
the  fact  that  the  Council  was  the  organ  of  a  foreign 
autocrat,  who  sought  by  means  of  them  and  his  equally 
obedient  Governor  or  Lieutenant-Governor  to  reduce 
the  province  to  a  kind  of  royal  apanage.  The  two 
extremes  of  republicanism  and  absolutism  met  in  a  con- 
test not  susceptible  of  compromise. 

When  the  Earl  of  Dartmouth,  who  had  succeeded 
Hillsborough  in  the  superintendence  of  American  affairs, 
heard  of  the  action  of  the  Commons  in  the  Printer 
Powell  case,  he  despaired  of  ever  reestablishing  the 
power    of    the     Council.^     Lieutenant-Governor     Bull, 

1  Pub.  Rec.  S.  C,  MS.,  XXXIV.,  2. 


86     CONSTITUTIONAL  HISTORY  OF  S.   C. 

wisest  of  all  the  King's  servants  in  South  Carolina,  had 
long  been  without  hope,  since  the  Commons  refused 
to  defer  to  the  King's  express  command  in  the  additional 
instruction. 

It  is  useless  to  detail  the  many  parliamentary  strate- 
gies by  which  the  Commons  sought  to  pass  the  tax  bill 
with  the  ;^ I  o,  500  inserted  ;  but  the  Council  had  been 
roused  to  the  highest  resentful  vigilance  and  could  not 
be  entrapped.  Peril  from  the  Indians,  who  were  again 
on  the  war  path,  from  bankruptcy,  from  imminence  of 
the  suspension  of  government,  could  move  neither  party 
to  concession  in  the  struggle  that  had  already  lasted  for 
four  years.  The  Council  became  such  objects  of  op- 
probrium that  scarcely  a  respectable  citizen  could  be 
found  to  fill  vacancies. 

On  March  22,  1774,  the  Council  again  rejected  the 
tax  bill,  because  of  the  item  of  ;^io,  500  to  reimburse 
the  treasurers  for  the  sum  they  had  given  the  commit- 
tee of  the  Commons  to  send  to  England  in  1769  for  the 
defence  of  British  and  American  liberty.  The  Com- 
mons did  not  go  to  the  logical  extent  of  their  theory 
that  the  Council  was  no  branch  of  the  legislature  and 
send  the  bill  to  the  Lieutenant-Governor  for  his  appro- 
val. To  have  done  so  would  have  been  a  farce.  But 
they  invented  a  new  way  to  ignore  the  lawmaking 
power  of  the  Council  and  enforce  their  own  sole  will. 
The  clerk  of  the  House  was  ordered  to  issue  to  the 
public  creditors  certificates  of  indebtedness  signed  by 
himself  and  five  members.  These  were  taken  in  pay- 
ment of  debts  and  passed  as  money  among  the  people, 
Lieutenant-Governor  Bull  of  all  men  in  South  Carolina 
alone  refusing  to  accept  them.  He  had  received  not 
one  farthing  of  salary  since    1769,    preferring  to  suffer 


COMMONS   TO  ABOLISH.  87 

deprivation  rather  than  countenace  the  assumptions  of 
the  Assembly  by  treating  their  paper  as  having  lawful 
value. ^ 

On  the  23d  of  March,  1774,  the  Commons  did  by 
their  sole  authority  an  act  that  was  more  purely  legisla- 
tive and  more  assertive  of  their  supreme  control  of  all 
money  matters  than  any  former  instance.  There  was  a 
law  at  that  time  that  the  owner  of  an  executed  slave 
should  be  paid  i^200  currency  for  the  loss  of  his  proper- 
ty. On  the  above-mentioned  day  the  Commons  resolv- 
ed that  the  value  of  the  negro  should  be  appraised  by 
the  magistrates  and  freeholders  conducting  the  trial,  and 
that  the  sum  they  named  should  be  paid  the  owner. 
The  attention  of  public  officers  was  directed  to  this  reso- 
lution, and  they  were  ordered  to  conform  to  its  require- 
ments. Inspection  of  the  public  accounts  shows  that 
the  resolution  of  the  Commons  was  observed  as  law, 
and  that  two  or  three  times  the  amount  of  money  was 
taken  from  the  treasury  under  the  new  rule  as  under  the 
old.-  Another  act,  at  least  semi-legislative  in  character, 
consummated  by  the  Commons  alone,  was  that  on 
August  2,  1774,  they  called  for  a  loan  of  ;{^  1,500  ster- 
ling for  the  expenses  of  their  delegates  to  the  Continent- 
al Congress  and  promised  to  repay  the  amount  with 
interest.'^ 

These  acts  have  a  deep  significance.  The  question 
What  is  the  state  in  any  government .'  can  be  answered 
by  ascertaining  what  power  can  dispose  of  the  public 
money  and  have  its  mandates  carried  into  effect.  The 
theory    that  the  King  of    England,   or  even  the  whole 

1  Pub.  Rec.  S.  C,  MS.,  XXXIV.,  24,  36. 

2  Com.  Jour.  S.  C,  MS.,  XXXIX.,  pt.  II.,  159,  211. 

.3  Cora.  Jour.  S.  C,  MS.,  XXXIX.,  pt.  II.,  172;  Pub.  Rec.  S.  C,  MS.,  XXXIV., 
188. 


88     CONSTITUTIONAL  HISTORY  OF  S.    C. 

Parliament,  was  the  state  in  the  colonies  was  bein^ 
rapidly  proved  to  be  fallacious;  the  state  had  shifted  to 
America.  The  only  logical  consequence  was  a  radical 
political  reorganization  which  would  give  a  true  express- 
ion to  the  changed  actuality.  This  reorganization  took 
place  in  1776.  In  the  light  of  these  considerations,  we 
see  plainly  the  essential  relationship  between  the  events 
we  have  been  tracing  in  the  provincial  history  of  South 
Carolina  and  the  American  Revolution. 

For  almost  exactly  four  years  there  is  a  complete 
blank  in  the  statutes  of  South  Carolina.  Between 
March  20,  1771,  and  March  4,  1775,  not  one  law 
was  passed.  An  act  reviving  certain  general  duties  and 
an  act  against  counterfeiting  the  money  of  other  colon- 
ies, both  passed  within  a  few  days  of  each  other  in  1775, 
were  the  last  laws  enacted  under  the  royal  government. 
After  1769  no  general  tax  bill  was  passed,  with  or  with- 
out the  £\o,  500.^ 

The  dispute  between  the  Commons  and  the  Council 
regarding  their  powers  and  relations  was  never  settled. 
When  Governor  Lord  Campbell  arrived  in  June,  1775, 
he  addressed  his  message  to  "The  Lower  House  of 
Assembly."  Instantly  the  old  furies  leaped  up. — May  it 
please  your  Excellency!  We  cannot  receive  any  com- 
munication so  addressed.  "It  implies  that  there  is 
another  House  in  this  colony  dignified  with  the  appel- 
lation  of  Upper  House   of  Assembly,   which  we  utterly 

deny We  cannot  receive  or  admit  on  our 

Journals  an  address  derogatory  to  the  honor  and  dignity 
of  this  House."  For  five  days  the  Commons  simply 
met  and  adjourned.  At  last  the  Governor  returned  his 
message,  addressed  to  "The  Commons  House  of  Assem- 

1  statutes  at  Large  ot  S.  C,  IV.,  331, 355. 


COMMONS   TO  ABOLISH.  89 

bly,"  and  disclaimed  any  special  reason  for  using  the 
term  "Lower  House."  He  was  a  stranger.^  On 
September  15,  1775,  Lord  Campbell  dissolved  the  last 
Assembly  that  ever  sat  in  South  Carolina  under  the 
British  Government,  and  that  same  day  fled  to  a  man- 
of-war  in  the  harbor.-  The  next  lawmaking  body  that 
met  was  a  single  house  of  revolutionary  origin,  which 
could  enjoy  without  hindrance  the  supreme  power 
for  which  the  Commons  had  so  long  striven. 

1  Com.  Jour.  S.  C,  MS.,  XXXIX.,  pt.  II.,  302-.5. 

2  Com.  Jour.   S.    C,    MS.,    XXXIX.,    pt.    II.,  314 ;  Charleston   Year   Book 
for  1884,  335. 


CHAPTER  XI. 

Conclusion. 

We  have  seen  the  EngHsh  constitution  in  its  new 
home  reproduced  and  adapted  to  local  requirements. 
It  was  the  spirit  of  that  constitution,  and  not  its  mere 
forms,  that  worked  in  the  history  of  the  province. 

Americans  of  the  present  day  are  accustomed  to  con- 
ceive of  an  ordaining  convention  as  necessary  to  estab- 
lish a  constitution,  and  may  even  fall  into  the  absurdity 
of  forgetting  that  the  colonies  before  the  Revolution 
had  any  constitutions.  On  the  contrary,  "the  constitu- 
tion," and  "constitutional"  were  among  the  commonest 
phrases,  though,  as  is  necessary  under  an  "unwritten 
constitution, "  exactly  what  was  meant  depended  largely 
on  the  individual  speaking.  Viewed  from  the  juristic 
standpoint,  the  royal  instructions  to  Governors  must  be 
considered  the  written  constitution  of  South  Carolina. 
In  no  respect  did  they  clash  with  the  letter  of  acts  of 
Parliament.  They  were  divided  into  sections  relating 
to  the  frame  of  government,  the  privileges  and  relations 
of  the  branches,  the  duties  of  officers,  rules  of  admin- 
istration, miscellaneous  and  temporary  matters,  and 
sometimes  even  contained  a  virtual  bill  of  rights — a 
bill  of  rights,  however,  which,  like  "The  Joyous 
Entrance"  and  other  Netherland  charters  of  liberties, 
was  the  grant  of  a  sovereign  as  of  grace,  and  not  an 
assertion  on  the  part  of  the  people  as  of  right.  As 
Motley  remarks,  there  is  an  essential  difference  between 


CONCLUSION.  91 

liberties  and  liberty.  There  is  much  similarity  between 
some  parts  of  these  instructions  and  royal  charters,  and 
the  early  State  Constitutions.  The  frame  of  govern- 
ment of  South  Carolina  was  created  by  the  instructions, 
and  was  carried  on  in  strict  accord  with  them  save  inso- 
far as  the  Commons  House  of  Assembly  was  able  to 
vindicate  a  more  democratic  system. 

The  position  of  the  Governor  and  Council  was  logi- 
cal. They  observed  the  instructions  in  all  particulars 
as  the  constitution.  The  position  of  the  Commons  did 
not  have  the  same  consistency.  When,  in  the  early 
years  of  the  development  we  have  traced,  the  Commons 
pleaded  that  the  intention  of  the  King  in  the  instruc- 
tions was  thus  and  so,  they  admitted  in  effect  the  valid- 
ity of  those  articles  as  the  colonial  constitution.  Even 
in  recognizing  the  existence  of  the  Council  the  Com- 
mons made  the  same  admission.  The  only  law  creating 
the  Council  was  the  royal  instructions.  To  acknowl- 
edge the  sections  creating  the  Council  and  deny  those 
defining  its  functions  was  wholly  illogical.  The  Coun- 
cil's right  to  existence  and  its  right  to  coordinate  legisla- 
tive power  were  derived  from  the  identical  document. 
The  Commons  treated  the  instructions  as  the  constitu- 
tion where  it  suited  their  purposes,  but  refused  to  regard 
those  sections  that  contradicted  their  interest  and 
desires. 

The  significance  of  the  fact  that  the  colonists  had 
been  accustomed  to  written  constitutions  was  great 
when  they  were  thrown  upon  their  own  governmental 
resources.  It  was  exemplified  in  the  immediate  and 
universal  adoption  of  written  frames  of  government  as 
things  already  familiar. 

What  the  Commons  really  made  their  model  was  the 


92     CONSTITUTIONAL  HISTORY  OF  S.   C. 

constitution  of  the  British  House  of  Commons.  They 
claimed,  and  with  varying  success  vindicated,  almost 
every  privilege  of  their  prototype.  This  claim  they 
based  on  the  laws  extending  to  the  colonies  all  the 
rights  of  Englishmen,  and  occasionally  on  the  royal 
charter  to  the  Lords  Proprietors.  The  actual  constitu- 
tion of  the  province  cannot  with  accuracy  be  designated. 
It  can  be  exhibited  but  not  defined;  for  it  was  not  a  set- 
tled thing,  but  was  in  process  of  becoming.  To  learn 
the  full  significance  of  the  events  we  have  witnessed, 
we  must  look  beyond  the  Revolution  to  the  constitution 
as  expressed  in  the  formal  documents  of   1776  to  1790. 

Not  until  the  Council  began  to  be  filled  with  placemen 
and  ruled  by  a  foreign  element  did  the  Commons  at- 
tempt to  deprive  it  of  its  legislative  power.  The  history 
of  that  King-appointed  body  is  one  of  continual  decline. 
Before  1725  it  amended  money  bills,  appointed  its  quota 
of  the  committee  of  correspondence,  and  helped  elect 
the  agent.  Gradually  its  power  of  amending  the  budget 
is  taken  away.  In  1754  it  ceases  to  be  styled  regularly 
the  Upper  House;  in  1756  it  loses  its  part  in  the  control 
of  the  agent  and  the  committee  of  correspondence. 
The  Commons  begin  to  grant  the  Governor  funds  with- 
out consulting  the  Council,  and  finally  without  reference 
to  any  other  party  in  the  government  presume  to  appro- 
priate money  for  their  own  purposes.  The  Council 
make  a  final  stand  from  1769  to  1775,  and  is  formally 
declared  by  two  judges  and  the  unanimous  vote  of  the 
Commons  to  be  no  branch  of  the  legislature,  but  a  mere 
Privy  Council  to  the  Governor. 

This  revolution  in  the  internal  government  of  the  col- 
ony was  independent  of  the  American  Revolution.  There 
can  be  no  doubt  that  if  South  Carolina  had  remained 


CONCLUSION.  93 

for  a  few  years  more  a  British  province,  there  must  have 
been  a  great  change  in  the  constitution  of  its  legislature. 
When  the  Revolution  came  and  the  opportunity  was 
given  the  Commons  to  put  their  theory  into  practice, 
they  were  perfectly  consistent  in  dealing  with  the  Coun- 
cil. The  historical  continuity  of  the  constitutional  de- 
velopment before  and  after  the  Revolution  was  unbroken. 
When  the  Constitution  of  1776  was  formed,  the  old 
Council  of  twelve  was  maintained  as  a  Privy  Council  of 
seven,  with  all  the  functions  of  its  predecessor  except 
the  legislative.  As  the  Commons  had  desired  the  King 
to  create  a  real  Upper  House,  in  1776  they  ordained 
that  the  House  of  Representatives,  standing  for  the  new 
sovereign,  the  people,  should  elect  such  a  body,  to  be 
called  the  Legislative  Council.  In  the  Constitution  of 
1778  the  Privy  Council  was  still  continued,  with  nine 
members,  and  a  Senate  elected  by  the  people  took  the 
place  of  the  Legislative  Council.  The  old  Council  as 
the  Carolinians  understood  it  at  the  outbreak  of  the 
Revolution  still  existed;  but  this  body  was  not  the  model 
for  the  Senate.  In  1790  the  Privy  Council  was  abolished, 
and  only  for  a  short  time,  as  the  Executive  Council  of 
1 86 1,  did  any  remnant  of  the  once  powerful  legislative 
and  executive  Council  reappear  in  South  Carolina  history. 
In  the  Constitutional  Convention  of  1895  there  was  a 
proposal  to  create  a  board  of  pardons  to  assist  the  Gov- 
ernor; but  this  attempt  to  revive  a  system  of  shackling 
and  propping  the  executive  found  no  favor.  The  Senate 
of  the  present  is  the  descendent  of  His  Majesty's  Coun- 
cil in  its  early  and  better  days.  Thus  does  the  fittest 
survive  in  American  constitutional  history  and  the  unfit 
drop  away  as  its  uselessness  is  demonstrated. 


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